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RIAA Defendant Moves For Summary Judgment

timothy posted more than 5 years ago | from the element-of-surprise dept.

The Courts 117

NewYorkCountryLawyer writes "One thing you don't see too much of in RIAA litigation is a defendant moving for summary judgment, but that is what just occurred in federal court in Westchester, in Lava Records v. Amurao II. The RIAA had brought suit against Rolando Amurao, a middle aged man who knew nothing about file sharing. After haranguing him for 2 years, they dropped the case and sued his daughter, Audrey, who had used LimeWire years ago. When the RIAA moved for summary judgment against Audrey, however, she surprised them with a summary judgment motion of her own, calling for dismissal of the complaint on the grounds that the statute of limitations had run out on the RIAA's claims. The brief filed by her attorney (PDF) also points out some of the other infirmities in the RIAA's case, such as the inadmissibility of its evidence, the legal nonexistence of a claim for 'making available,' and the unconstitutionality of its damages theory. According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge asking the Judge not to allow her to make it. Meanwhile, Audrey's father's case, Lava Records v. Rolando Amurao, is on appeal in the US Court of Appeals for the 2d Circuit over the issue of whether the RIAA should have to reimburse Mr. Amurao for his attorneys fees. Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument."

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117 comments

About That Letter .. (5, Funny)

eldavojohn (898314) | more than 5 years ago | (#28506285)

According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a sack of money to send the Judge asking the Judge not to allow her to make it.

There, fixed that for you. Actually, to be fair:

According to sources, the RIAA is unhappy about Audrey's motion, and is preparing a letter to send the Judge reminding the Judge that he's bought and paid for just like the lawmakers and Judges up the rest of the chain [cnet.com] .

More realistic although it's a shame this lower court Judge probably won't profit personally from the case unlike those installed into prestigious positions and those accepting lobbying money for their political campaigns.

Alternate summary (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28506303)

Found here [google.com] .

Re:Alternate summary (0, Informative)

Anonymous Coward | more than 5 years ago | (#28506371)

Found here [google.com] .

Parent is a nimp.org gnaa troll piece of shit ... not sure how google is resolving that url ...

Re:Alternate summary (0, Informative)

Anonymous Coward | more than 5 years ago | (#28506463)

it's actually somewhat impressive how they got google to open the link directly and then how it moves itself to prevent you from exiting. Thank ghu for killall firefox.

Re:Alternate summary (1)

angelwolf71885 (1181671) | more than 5 years ago | (#28506619)

more like thank you NoScript ;)

Re:Alternate summary (0)

Anonymous Coward | more than 5 years ago | (#28506907)

or in my case, thank you Sandboxie [sandboxie.com]

Hey Mods (1)

e9th (652576) | more than 5 years ago | (#28506701)

The GP is just a better-obfuscated version of this. [slashdot.org] Why is a troll warning modded Offtopic?

Re:Alternate summary (0)

RichardJenkins (1362463) | more than 5 years ago | (#28507883)

Possibly a link to the 'I feel lucky' functionality for a search that takes you to the nefarious page the troll wants. Likely a flaw for Google to fix.

First class trolling though, bravo.

Re:Alternate summary (0)

Anonymous Coward | more than 5 years ago | (#28509969)

First class trolling though, bravo.

There is no class in trolling --- sigh

Re:Alternate summary (4, Funny)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28510897)

If that's really what they say, then the law books are just wrong.

Oh. So you're God. Sorry, I didn't know.

Me I'm just a lawyer, who follows the law.

Re:About That Letter .. (5, Interesting)

anagama (611277) | more than 5 years ago | (#28506499)

I don't really understand the "letter to the judge" part. Absent an issue with a party abusing motion practice, any motion should be considered and nobody has a right to say a party can't file a motion. The other party is totally free to argue that the motion is bogus of course, and if the motion is defective for procedural reasons, it can be denied on that basis. Nothing is stopping the RIAA from filing a response saying the motion should be denied, and I suppose the letter could be considered an informal response, but if it isn't shared with the other party, then it is unethical and improper communication with a judge.

I wish we had more info on what this "letter to the judge" thing means.

Re:About That Letter .. (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28506549)

I wish we had more info on what this "letter to the judge" thing means.

1. A summary judgment motion "searches the record", which means that the Court can grant summary judgment motion AGAINST the party making the motion. I.e., the judge is supposed to search all of the papers, both for and against, and if the moving party's case should be thrown out, the Court should throw the case out.

2. Sometimes, when a party opposing summary judgment feels the other side's case should be thrown out altogether, the party also files a "notice of cross-motion", sometimes he or she doesn't bother.

3. In this case there had been an agreed extension of the time to file "opposition papers".

4. When the RIAA saw that the opposition papers contained a "notice of cross-motion" they complained, saying that the extension of time did not apply to any "cross-motions", and said they would write to the Judge asking her not to consider the "cross-motion".

5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

Re:About That Letter .. (1)

Rakishi (759894) | more than 5 years ago | (#28506699)

5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

I'd say they're just trying all possible options in case one works by pure chance. They have money to burn so filing such things doesn't matter too much to them.

Re: Thanks NYCL (4, Insightful)

jobsagoodun (669748) | more than 5 years ago | (#28506757)

Thanks NewYorkCountryLawyer for your posts and followups. I for one greatly enjoy reading them.

Re: Thanks NYCL (1)

Odemia (903230) | more than 5 years ago | (#28509049)

Thanks NewYorkCountryLawyer for your posts and followups. I for one greatly enjoy reading them.

+1 Always insightful, Thanks for the info.

Re: Thanks NYCL (1)

brain_fingered (1568327) | more than 5 years ago | (#28509771)

+ A million -- thanks I always look forward to reading through your posts on /. ;)

Re: Thanks NYCL (1)

CmdrGravy (645153) | more than 5 years ago | (#28510993)

+1,000,000,000 trillion million billon. I love you NYCL and I'd love shove my tongue down your ear hole and lick just a tiny part of your incomparable brain, and then maybe have your children.

Re:About That Letter .. (1)

beelsebob (529313) | more than 5 years ago | (#28506807)

In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.
Is that really the case, do lawyers not try absolutely everything they can get away with to make the opposition's case weaker? Or is my view of lawyers too influenced by the Shat and Holywood?

Re:About That Letter .. (1)

BrokenHalo (565198) | more than 5 years ago | (#28509753)

Lawyers do what they do because there are asswipes out there who will pay them. What bothers me here is that the MAFIAA keep saying they are going to discontinue their practice of going after individual downloaders and concentrating on sharers. So far, I have seen little or no evidence of this.

Re:About That Letter .. (1)

xouumalperxe (815707) | more than 5 years ago | (#28511703)

Lawyers are just like any other profession: There's a set of ethics attached, and some professionals can't sleep at night if they don't follow the spirit of those rules, whereas others don't give much of a damn and will just stick to the text of the rules if they have to.

Best case scenario? (1)

Weaselmancer (533834) | more than 5 years ago | (#28507609)

5. In my opinion their objection is frivolous, and demonstrates that they are deathly afraid of Audrey Amurao's motion.

So, what exactly is at stake here? I'd like to know more about the deathly fear part. =)

If I'm reading it right, would the summary judgment if granted provide some sort of precedent? For instance, if this flies would other cases be able to say the RIAA's evidence is inconclusive or inadmissible, or "making available" is not proven? Something like that maybe?

Re:About That Letter .. (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28513215)

Ray, I'm sure you are a nice guy but you have your own blog, isn't it about time you actually stopped spamming every single thing that crosses your inbox as a flipping slashdot submission?
this isn't 'news for lawyers'

Re:About That Letter .. (0)

Anonymous Coward | more than 5 years ago | (#28506567)

They cant be trying to block it because it'll give other people ideas can they?
IANAL but I assume just filing a motion wont affect any future cases.

Unless 5000 people all did the same thing.. that'd be interesting to see.
Surely popular opinion should affect how judges interpret the law.

Re:About That Letter .. (1)

Keith_Beef (166050) | more than 5 years ago | (#28508761)

There are times when "popular opinion" needs to be overruled by "expert opinion".

After all, this is why we have judges in the first place, otherwise there would just be mob rule, lynchmobs... Judge Judy and American Idol rolled into one... Idiocracy.

In the US you have thousands, if not hundreds of thousands, of people who believe that the world is flat... doesn't make it true.

If "popular opinion" is at odds with a particular current law, then maybe that law needs to be changed.
On the other hand, it may be that this law is a just law, but that "popular opinion" has not yet been educated enough to understand the justice of the law.

K.

Re:About That Letter .. (0)

Anonymous Coward | more than 5 years ago | (#28507679)

What kind of a justice system does USA have when they deny someone to make a complaint and file for summary judgment the same way as the opposite side?

Zombie Movie (5, Funny)

Jane Q. Public (1010737) | more than 5 years ago | (#28506375)

This reminds me so much of a zombie movie... where somebody has cut off the zombie's head, but it doesn't know it's dead yet, and stumbles around causing damage and killing people for a couple of years before it falls over for good.

I will be soooo happy when the RIAA finally realizes it's dead.

Re:Zombie Movie (1)

morgan_greywolf (835522) | more than 5 years ago | (#28506413)

I will be soooo happy when the RIAA finally realizes it's dead.

Don't hold your breath. The current governmental regime is keeping that zombie on life support.

And that's CHANGE we can believe in! (2, Insightful)

Anonymous Coward | more than 5 years ago | (#28506501)

Won't Get Fooled Again [sing365.com]

We'll be fighting in the streets
With our children at our feet
And the morals that they worship will be gone
And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song

And the world looks just the same
And history ain't changed
'Cause the banners, they all flown in the last war

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
No, no!

I'll move myself and my family aside
If we happen to be left half alive
I'll get all my papers and smile at the sky
For I know that the hypnotized never lie

Do ya?

YAAAAAAAAAAAAAAAAAH!

There's nothing in the street
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Is now the parting on the right
And the beards have all grown longer overnight

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around me
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again

Don't get fooled again
No, no!

YAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAH!

Meet the new boss
Same as the old boss

Hope-n-change!

Re:Zombie Movie (1, Funny)

Anonymous Coward | more than 5 years ago | (#28506571)

Clearly it's much more like JAWS... where the giant shark eats everyone for a while, then someone feeds it explosives. It then rains shark guts.

I will be sooooo happy when it rains RIAA guts.

Re:Zombie Movie (1)

BobSixtyFour (967533) | more than 5 years ago | (#28507323)

A dead undead. That'll be the day!

Re:Zombie Movie (1)

boombaard (1001577) | more than 5 years ago | (#28507707)

Isn't that sequence of events trademarked (or whatever) as a business method (or whatever) by Looney Tunes (or something)? It seems suspiciously similar to the sequences where laws like the law of gravitation only kicks in once the character sees he should be affected by them?

Re:Zombie Movie (5, Insightful)

thej1nx (763573) | more than 5 years ago | (#28511553)

In a way, RIAA is indeed an undead zombie.

Pardon me, but isn't traditional purpose of so-called zombies is supposed to obey the orders and act as a proxy of the person who raised them?

RIAA is just a bogeyman. A shadow puppet. It is the *media companies* that are suing you. It is *media companies* like Sony, Warner Bros. etc. which are harassing their own consumers. I am not aware of "RIAA" producing any songs.

Sony would not like the negative publicity of being caught suing a 84 year old grandmother. So it banded up with other companies to make a dummy face which people can hate, instead of sony itself or other such companies. Corporations hate the negative publicity. That is the only place where we can hurt them. And when you hate/attack the puppet instead of its master, you are being just the dumb person Sony and its ilk assumed you to be, and playing their game their way.

You want RIAA to die? Stop naming RIAA in these stories as the suing party. It is not that tough to find out which company in the cabal is alleging the piracy. Name *them* when you report the stories of blind homeless veteran being sued by them.

If someone sues you with malice, should you hate the lawyer they have hired, or the guy who is actually suing you and paying the lawyer to make your life hell?

Sony and its pals do these stunts because they know you will hate the "RIAA" instead of them, and they will get to keep their rosy image and be safe from any direct public-backlash. Change the rules, and attack the voodoo witchdoctor. And then see the zombies die.

Re:Zombie Movie (2, Insightful)

guruevi (827432) | more than 5 years ago | (#28515427)

It's already being done the way you descibe. Read any of these cases:

Lava Records v. Amurao
Capitol v. Thomas
UMG v. Lindor
Atlantic Recording v. Brennan

The RIAA is just a consortium where those big labels have deposited and combined their moneys in order to eradicate this internet thingy once and for all. The RIAA just hires a bunch of lawyers to do it and shares the information among the parties. From a laymen's perspective: it's kinda like several mob bosses outsourcing their harassing/collecting to the same company. From a legal/business perspective: It's the colluding of several large businesses in order to secure their respective monopolies and keep other smaller players away from the market. The RIAA also does other things besides lawyering like fixing prices between those large businesses - legally those businesses can't collude to fix the prices on their products (they offer products to both the artists and the artists' customers). They just all happen to have the same 'market research' agency that advices them a certain price point and specific contract outlines.

The RIAA needs to be disbanded and all of the assets returned to their owners (after the victims have been repaid) and then let each of them fight their own fights - let the recording agencies fight between each other for artists and let the market decide who to give the most business.

Re:Zombie Movie (1)

mpe (36238) | more than 5 years ago | (#28512207)

This reminds me so much of a zombie movie... where somebody has cut off the zombie's head, but it doesn't know it's dead yet, and stumbles around causing damage and killing people for a couple of years before it falls over for good.

I didn't realise this was another story about SCO :)

HI, BILLY MAYS HERE! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#28506383)

You read that in his voice, didn't you?

RIP Billy Mayes.

You Go Girl! (2, Funny)

electricprof (1410233) | more than 5 years ago | (#28506555)

Three cheers for the lady!

Re:You Go Girl! (-1, Troll)

Anonymous Coward | more than 5 years ago | (#28507031)

fag

If the legal system worked, (0)

Anonymous Coward | more than 5 years ago | (#28506623)

RIAA bosses would be charged for harassment and imprisoned. Fix your legal system.

Man'kind' planning to skip 'judgement day'? (0)

Anonymous Coward | more than 5 years ago | (#28506635)

as far as we can see, it's coming anyway. very important peepoles are being forced to part with their parcels for a song. couldn't be more appropriate?

Prosecution (5, Insightful)

BountyX (1227176) | more than 5 years ago | (#28506655)

At what point does the legal system itself become a tool for prosecution? Both the father and daughter are involved, despite the outcome, it basically amounts to harassment. Sad.

Re:Prosecution (4, Insightful)

Tiberius_Fel (770739) | more than 5 years ago | (#28506919)

I think you mean "persecution". I'm pretty sure the legal system is meant to be for prosecution.

Re:Prosecution (2, Insightful)

KillerBob (217953) | more than 5 years ago | (#28512879)

I think he actually means Malicious Prosecution [wikipedia.org] , which is also already covered in the legal systems of most of the world....

Re:Prosecution (5, Insightful)

CowboyBob500 (580695) | more than 5 years ago | (#28510227)

Exactly. What kind of dumb legal system allows a rich person to sue a poor person, then half-way through say, "Oops, didn't mean it", without having to cover the costs of the other party?

Re:Prosecution (1)

dogeatery (1305399) | more than 5 years ago | (#28510593)

+1!

Re:Prosecution (4, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28510837)

In Capitol Records v. Foster the court awarded $64,000 in attorneys fees against the RIAA, and in Atlantic Recording v. Andersen the court awarded $108,000.

Re:Prosecution (1)

xouumalperxe (815707) | more than 5 years ago | (#28511749)

Honest question: Outside cases that settle, is getting attorney fees the rule, or were those cases exceptional?

Curious interpretation of "the public" (5, Interesting)

superdana (1211758) | more than 5 years ago | (#28506665)

Not sure how I feel about this bit (emphasis in original):

The distribution right encompasses distribution to the public. But song files which reside on a computer hard drive are only accessible to someone else who has the same file-sharing software.

Maybe "the public" has some special meaning in Lawyer Town, but the fact that file-sharing software is required to access shared files doesn't convince me personally that the files aren't available to the public. It's not as though there is some privileged minority of people who have access to file-sharing software. Anyone can download it.

Re:Curious interpretation of "the public" (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28506767)

Maybe "the public" has some special meaning in Lawyer Town

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

Re:Curious interpretation of "the public" (1)

superdana (1211758) | more than 5 years ago | (#28506977)

this comment can be viewed by "the public" -- rather than to a limited network.

Assuming you have a web browser. What's the difference between a web browser and file-sharing software? Why would one be considered public and the other not?

Re:Curious interpretation of "the public" (4, Informative)

Nefarious Wheel (628136) | more than 5 years ago | (#28507283)

Assuming you have a web browser.

And also that the files are available without a private agreement. Having to log in means accepting the EULA and agreeing to be part of a private exchange. Trivial point, perhaps, but the difference between public and private is the difference between a public investigation and a private one. Private investigations are subject to specific laws concerning behavior.

Re:Curious interpretation of "the public" (3, Insightful)

Lloyd_Bryant (73136) | more than 5 years ago | (#28506995)

Maybe "the public" has some special meaning in Lawyer Town

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one?

Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents). That one would put an end to the whole RIAA campaign, if you can ever get the judiciary clued in...

Re:Curious interpretation of "the public" (1)

rattaroaz (1491445) | more than 5 years ago | (#28507165)

Please stick to arguments that will actually hold water

Sorry, but I disagree 100%. The RIAA is notorious for throwing absolutely anything on the wall and seeing if it will stick. The hope is that if you swing a bat enough times, eventually you are going to hit a ball. To me, it seems foolish/naive to argue logic and apply fairness principles in a situation like this. Every small little annoying detail should be argued to the stupidest degree. That is how the RIAA has been playing it, and I don't think it's a good idea to play chess, when your opponent is playing checkers.

Re:Curious interpretation of "the public" (5, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28507289)

Maybe "the public" has some special meaning in Lawyer Town

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

Sorry Ray, but I have to call you on this one. Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network. If I were handing out CD's to people here in Tucson, would you say that they weren't available to the public since you'd have to fly down here to get one? Please stick to arguments that will actually hold water, such as that the law be requires the RIAA to show that there was actual distribution to the public (rather than just to their agents).

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network. Also, your analogy doesn't "hold water" for about 600 reasons.

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.

You obviously don't know me. I only make arguments that "hold water". I'm just a country lawyer that wound up in a big city. I don't write the law. I report it.

Re:Curious interpretation of "the public" (1)

honkycat (249849) | more than 5 years ago | (#28507897)

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network.

I think it's more than just disagreeing with them. If that's really what they say, then the law books are just wrong. That is simply not a reasonable definition of "public." By your logic, nothing on the Internet could ever be interpreted as "public."

Re:Curious interpretation of "the public" (1)

TheLink (130905) | more than 5 years ago | (#28512445)

Yeah to me "distribution to the public" = even strangers, people you don't know can easily get the stuff.

Since only about 24% of the people in the world have access to the Internet is the Internet a "public" network or a limited network?

Re:Curious interpretation of "the public" (1)

nametaken (610866) | more than 5 years ago | (#28507967)

The law books say that for a distribution to be "to the public" it can't be to a limited network.

Huh... what you guys are talking about is interesting. It seems like it illustrates yet another gross disconnect between the law and the real world. Certainly if I put some piece of software out for download, free of charge on the internet, I'd call that kind of distribution "to the public". I mean, I guess the internet is a limited network, so not everyone has immediate access to it, but to me it's available to the public. As usual, thanks for the insight NYCL. I hope you're publishing on this stuff like crazy.

Re:Curious interpretation of "the public" (1)

fluxrad (125130) | more than 5 years ago | (#28508103)

I'm just going by what the law books say.

I would strongly advise that you begin incorporating case law into your practice and interpretation of the law. Arguing that file sharing isn't public is akin to arguing that bootlegging DVDs in Manhattan isn't public because only New Yorkers have access to the material.

Re:Curious interpretation of "the public" (3, Insightful)

Lloyd_Bryant (73136) | more than 5 years ago | (#28508143)

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network.

But is Gnutella a "limited network"? Any person who has
1) A computer
2) Access to the Internet
3) A Gnutella "servent" (Limewire, Bearshare, etc., which can be downloaded for free from the net.)
has access to Gnet. Since pretty much anybody can obtain all of the three, I would consider that public.
(Whether the law does or not is, of course, another matter entirely)

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove (a) dissemination of copies to the public, and (b) a sale, other transfer of ownership, rental, lease, or lending.

That was my main point. There are many different angle of attack on this problem:
1. No proof that anything was ever distributed to anyone other than MediaSentry
2. The fact that MediaSentry's methods are secret, and cannot be established as being reliable.
3. The fact that MediaSentry has extremely lax evidence handling procedures.
4. The fact that MediaSentry isn't licensed to perform investigations, though many states require this for collection of evidence to be used in a court of law.
5. The fact that their so called expert does little but regurgitate what MediaSentry tells him.
6. The fact that their expert has a vested financial interest in the success of the terror campaign.

Re:Curious interpretation of "the public" (0)

Anonymous Coward | more than 5 years ago | (#28509173)

Any person who has
1) A computer
2) Access to the Internet
3) A Gnutella "servent" (Limewire, Bearshare, etc., which can be downloaded for free from the net.)
has access to Gnet. Since pretty much anybody can obtain all of the three, I would consider that public.

Any person who has the keys to my office and the combination to my safe can access what I have in there. Does that make it 'public'?

Do you even believe what you're saying? (1)

danaris (525051) | more than 5 years ago | (#28512783)

Any person who has 1) A computer 2) Access to the Internet 3) A Gnutella "servent" (Limewire, Bearshare, etc., which can be downloaded for free from the net.) has access to Gnet. Since pretty much anybody can obtain all of the three, I would consider that public.

Any person who has the keys to my office and the combination to my safe can access what I have in there. Does that make it 'public'?

Come now, that's being deliberately disingenuous.

There is only one key to your office (or a very limited number). The combination to your safe is not something that is available to most people.

Computers are quite common, and most people above a very low income threshold have the ability to acquire one easily. Similarly, unless you live way out in the sticks, internet access is available to anyone over a slightly higher income threshold (assuming you're after broadband).

Once you have internet access, you can download any of the Gnutella clients for free.

In order to access your keys, someone would presumably have to steal them. In order to access your safe combination, someone would presumably have to either torture you for the information, or guess.

There's an enormous difference there in who things are available to.

Dan Aris

Re:Curious interpretation of "the public" (1)

L4t3r4lu5 (1216702) | more than 5 years ago | (#28512809)

You're comparing the physical world with the non-physical, and you're doing it completely wrong.

To follow your analogy, a more accurate comparison would be if you:
  1. Duplicated every music CD you own,
  2. Put your copied CD collection in your garage
  3. Opened your garage door,
  4. Put a sign at the end of your driveway saying "All CDs in my garage are free!"
  5. Had a MediaSentry employee come to your garage sale and take some of your CDs,
  6. Then had a court summons for selling copyrighted media against license terms.

Your house may not be "public" but in the eyes of the law, the CDs in the open garage (songs in the shared folder) and the sign at the end of the drive saying the CDs are for others to take (invitation to download files by being on the Gnutella Network) make the CDs in your garage (songs in shared folder) "in the public."

Re:Curious interpretation of "the public" (1)

bidule (173941) | more than 5 years ago | (#28509529)

But is Gnutella a "limited network"? Any person who has
1) A computer
2) Access to the Internet
3) A Gnutella "servent" (Limewire, Bearshare, etc., which can be downloaded for free from the net.)
has access to Gnet. Since pretty much anybody can obtain all of the three, I would consider that public.
(Whether the law does or not is, of course, another matter entirely)

Fine.
Then let the RIAA argue why it should be "to the public". Don't give it to them without a fight.

Re:Curious interpretation of "the public" (1)

d'fim (132296) | more than 5 years ago | (#28508987)

So how do the lawbooks define a "limited network"?

How is Limewire a "limited network" as opposed to a venue for distribution "to the public"?

Re:Curious interpretation of "the public" (1, Insightful)

Anonymous Coward | more than 5 years ago | (#28513269)

Here's an analogy to make it easier to understand. Many people call themselves Christians but don't belong to any church. Anyone can theoretically walk into a church and become a member, but the church is not the public, it is instead a limited group of people. It's not the price of entry that makes a group public or private it is whether or not the entity is available to all or not. A file put as an active download would have more legal standing than a file in a torrent or file sharing network.

Re:Curious interpretation of "the public" (1)

dogeatery (1305399) | more than 5 years ago | (#28510669)

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove ... (b) a sale, other transfer of ownership, rental, lease, or lending.

NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter?

Or does it only count if I allow my friend to scan copies of every page?

Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is what I learn here on /. -- On the plus side, I can spout off plenty of bad analogies!

Re:Curious interpretation of "the public" (4, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28510827)

By the way, the "to the public" element is just one of the many missing elements. The RIAA has also failed to prove ... (b) a sale, other transfer of ownership, rental, lease, or lending.

NYCL, you bring up what's always bugged me about this whole mess -- if you aren't distributing a copy for money, how is it any different from lending your friend a book? If you say the RIAA must prove lending, does this mean it's technically illegal for me to share my copy of Harry Potter? Or does it only count if I allow my friend to scan copies of every page? Although I've followed this stuff closely for the last decade or so, I'm still not clear on the fine points of the legal arguments. All I know is what I learn here on /. -- On the plus side, I can spout off plenty of bad analogies!

It's easy. You just go by what the book says. It says that for there to be a distribution there has to be
-a dissemination of copies
-to the public
-by sale, other transfer of ownership, rental, lease, or lending.

All of the above have to have occurred.

Since none of the above occurred, there is no distribution within the meaning of the Copyright Act.

Re:Curious interpretation of "the public" (1)

Pranadevil2k (687232) | more than 5 years ago | (#28511329)

So to answer the question of whether or not you can safely lend your book to a friend, yes you can.
Mayhap I am misinterpreting but it sounds like you can get away with just about anything as long as you don't sell or transfer ownership of what your giving away O.o

I can give out copies for money, as long as it's not to the public? Taking the stance that GNUtella clients/networks are private networks means everything you do with them is legal, then.
I can give out copies to the public as long as I am not selling/leasing/lending/'transferring ownership'? I'm not positive what constitutes transferring ownership, but the **AA guys seem to think we never own any of our media so I can't transfer it if I wanted to anyway.
I could also apparently give out originals to the public for money, but that one actually makes sense to me ;)

Re:Curious interpretation of "the public" (1)

dogeatery (1305399) | more than 5 years ago | (#28514043)

So to recap: The friend to whom I lend the book isn't "the public," so the points aren't all met. Good to know!

I can see how "transfer of ownership" and "public networks" will take some wrangling. The "public dispersement" is definitely a fine line. GNUtella might be considered a private network, but the means of distribution through that network is like having songs on a store shelf where customers simply pick what they want when they find it.

I guess the "transfer of ownership" could be the real test, since, as you point out Pranadevil2k, they generally maintain that we don't own anything!

Re:Curious interpretation of "the public" (1)

Rogerborg (306625) | more than 5 years ago | (#28511147)

I'm just going by what the law books say

Citation needed.

Re:Curious interpretation of "the public" (2, Funny)

L4t3r4lu5 (1216702) | more than 5 years ago | (#28512737)

I'm just a country lawyer that wound up in a big city.

Keanu? [imdb.com]

Re:Curious interpretation of "the public" (2, Insightful)

KillerBob (217953) | more than 5 years ago | (#28513149)

I'm just going by what the law books say. Sorry you disagree with them. The law books say that for a distribution to be "to the public" it can't be to a limited network. Also, your analogy doesn't "hold water" for about 600 reasons.

I think his point, though, is that while the distribution is limited to people who can connect to the Limewire network (Gnutella, IIRC), the network itself is available to the public. There's dozens of programs out there which can connect to the network, and the protocols which govern the network are well documented and freely available.

Yes, it's an added step you have to take in order to access the network, but it's by no means restricted or private.

Simply making a product available, however, isn't enough for a copyright infringement case to stick in some parts of the world. Up here in Canada, for example, they have to be able to show that either there's material gain on behalf of the person doing the distributing, or that that person or party is individually responsible for material loss on behalf of the infringed party. Neither would be possible to prove in court, as she does not get paid for files that get downloaded from her computer, and because of the way the network is designed, removing any single source from the network doesn't take the files off the network. She's not the only source, so she can't be individually responsible.

Even *if* they could prove that filesharing is responsible for the dropoff in sales that they're noticing, and not their business practices or their tendency towards signing cookie-cutter crap bands (I was looking through my record collection, and 99% of the bands I listen to these days are independant because they can't get a record company to take a risk by signing them), they still wouldn't be able to tie those losses to the individual person, because that person is not an integral part of the network. They'd have to go after the designers of the network itself, which is what they have been trying to do up here.

Now, I'm not a lawyer. I did pass my LSAT up here in Canada, but my degrees are in Philosophy and Linguistics, so take it with a grain of salt. And the personal attack was inappropriate... but hopefully this will shed some light on his point.

Re:Curious interpretation of "the public" (0)

Anonymous Coward | more than 5 years ago | (#28512437)

Saying that the files are only "available to people on a particular network" *is* making them available to the public, since potentially anyone can connect to that network.

"Available to people on a particular network" like the private network behind your home NAT or a corporate VPN. "Public" generally means any human being of ordinary ability and without special rights and "available" would be interpreted as enables access through means within the ordinary efforts of normal people. eg, a billboard in New York City is "available to the public" even though no one Oslo can read it. Public, in this case, would be all those people who don't have a license to view/listen to a particular work of art. The requirements to obtain file-sharing software, a computer, access to the internet, electricity, and data storage hardware are all easily within the capabilities of normal people and do not create a special, "privileged" network. Obtaining access to my personal, home network is outside the capabilities of ordinary, untrained individuals, and therefore constitutes a private or particular network. Even if you wish to consider gnutella etc a de facto private network, that network is comprised of many people who lack license to particular audio files, and joining the network does not confer that license. Therefore, although gnutella may be, in a very loose sense, "a particular network" its membership comprises the public.

Really, this kind of nit-picking amounts to claiming that court documents naming LLOYD BRYANT do not refer to Lloyd Bryant because the capitalization is wrong.

Re:Curious interpretation of "the public" (2, Insightful)

Grond (15515) | more than 5 years ago | (#28507053)

I would say it has the same meaning it has everywhere else, which is that it is available to all -- as, e.g., this comment can be viewed by "the public" -- rather than to a limited network.

But in fact your comment is only available on a limited network. Viewing your comment requires access to the internet, which is a subset of all networks (e.g., the old AOL network would not have sufficed, nor would a computer in North Korea, I'm guessing). Further, access must be through a system that allows HTTP traffic to and from Slashdot's servers, which is another subset (e.g., a work computer with strong filtering would not work). The client also has to have a web browser or other means of sending HTTP requests (e.g., limited cell phones would not work).

What viewing your comment does not require is a Slashdot membership or paying an access fee. Viewed this way, making files available on Kazaa, a bittorrent network, or the like is equally public. It only requires a general purpose internet connection and freely available software. It does not require a site membership or paying an access fee (members-only torrent networks excepted, of course, but I don't believe that's at issue here).

A better of definition of 'available to the public' is whether or not the party making the files available has taken any measures whatsoever to monitor, filter, or prevent access to the files according to some criteria set by the sharer. By default, most file sharing networks make files available to all comers, so long as they obey the protocol. The same is true of a public website like Slashdot (just try reading your comment by sending malformed HTTP requests; it won't work).

So, for example, if a file-sharer limits access to a whitelist of people known to the sharer (e.g., friends), that might be different, but again, I don't think that's the case here.

Re:Curious interpretation of "the public" (2, Insightful)

westlake (615356) | more than 5 years ago | (#28507517)

The distribution right encompasses distribution to the public.

I can loan a DVD to a my neighbor. I can sell the disk or give it away.

What I can't do is scan it into the ultimate copy machine for the convenience of 15,000 of my closest friends on the P2P nets.

--- or the twelve on my Dark Net.

"Distribution to the Public" is a diversion, a red herring, and in NYCL's argument it has a particularly rancid smell.

     

Re:Curious interpretation of "the public" (1)

jedidiah (1196) | more than 5 years ago | (#28508509)

You don't even have to use the "ultimate copy machine" analogy.

It's unlawful to make and old style 70's speaker in front of the mic recordings and give it to your neighbor.

Setup a WAN with your neighbor and it's the same as being on Limewire.

Re:Curious interpretation of "the public" (1)

L4t3r4lu5 (1216702) | more than 5 years ago | (#28512859)

You can't lend a DVD to your neighbour. That's "lending" which you'll see is forbidden in the same phrase as "copying, leasing, public performance, distribution..." etc when you start up your DVD.

You know, the bit VNC Media Player allows you to skip totally,

Grandfather clause? (1)

miggyb (1537903) | more than 5 years ago | (#28506707)

This is really interesting. FTA:

Moreover, the copying, even assuming it was an infringement, took place when the song files were first copied onto defendantâ(TM)s computer hard drive. The fact that they were still there later does not constitute a continuing infringement, regardless of when MediaSentry may have accessed the files.

The way I interpret this (although IANAL) is that if you're sharing a folder online, and they don't sue you within 3 years, you're pretty much home free? This could be really good news for people who share files. Especially since you could copy them to a computer not connected to the internet, wait 3 years, then release it to the wild.

The question is, of course, whether people would be happy sharing 3-year-old music.

Re:Grandfather clause? (1)

electricprof (1410233) | more than 5 years ago | (#28506739)

I don't think the law entitles you to release copyrighted material into the wild, but rather describes a statute of limitations.

Re:Grandfather clause? (4, Insightful)

Lloyd_Bryant (73136) | more than 5 years ago | (#28506923)

The way I interpret this (although IANAL) is that if you're sharing a folder online, and they don't sue you within 3 years, you're pretty much home free? This could be really good news for people who share files. Especially since you could copy them to a computer not connected to the internet, wait 3 years, then release it to the wild.

IANAL either, but I believe you're confusing two points. There are two different rights given to copyright holders - the exclusive right to create copies, and the exclusive right to distribute them to others.

The section you're reading only applies to the former. So imagine the following: You download a bunch of songs from the 'net, and have them on your hard drive for more than 3 years. Then they discover that you have those infringing copies. The statute of limitation prevents them from suing you for having copied those songs without the rights holder's permission.

But, if you then distribute them to the public, a new infringement occurs (a violation of the exclusive right to distribute). The statute of limitations on *that* runs from the date of distribution, not the date of copying.

Re:Grandfather clause? (1)

steelfood (895457) | more than 5 years ago | (#28515053)

IANAL as well, but I think you're misinterpreting copyright law. Copyright law these days deals with distribution. Ever since the establishment of fair use, the mere act of copying is no longer considered infringement.

I can download an album, but if I already have the existing album in another form (CD, maybe even iTunes AAC), I'm covered by fair use. The poor sap who's uploading it to me though, is not authorized to distribute, and hence is still liable for infringement.

Even if I didn't have said album, I may be able to argue that because I can't tell who has distribution rights or not, that I make the assumption that anyone who is distributing is legally doing so, and so my act of infringement is not willful. Though, I think this argument doesn't always hold water. For example, it's not hard to argue that I'm willfully infringing if I'm downloading off a P2P application. However, if I grab a torrent or follow instructions or link off of an official-looking site, who's to say that the artist isn't offering the album to me for free?

Hence the focus of the RIAA on uploaders; they're the low hanging fruit whom is all infringing. Downloaders may or may not depending on the situation.

Copyright term is now three years? (1)

cdrguru (88047) | more than 5 years ago | (#28507015)

This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years. Right?

Or does this sounds like it might be in actuallity something that shouldn't quite be decided this way?

Be very careful on which side you are cheering for. Neither side is approaching this very well, and certainly the daughter in this case is (a) clearly in the wrong and (b) hoping for a reprive. Maybe she will get it.

Where do you think Sony goes if all they have to do is "steal" some music, wait three years and then publish it under their own name? After all, the statute of limitations will have run out, won't it? I'll bet that someone like Sony might try this, either them or WalMart.

You see, what gets decided in the courtroom isn't just for happy little filesharers. It applies to everyone else as well, no matter what their motives might be.

Re:Copyright term is now three years? (4, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28507359)

This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years.

It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

Re:Copyright term is now three years? (4, Funny)

aztektum (170569) | more than 5 years ago | (#28507623)

It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

Somewhere in DC a lobbyist is trying to get statute of limitations increased to "death of the uploader + 99yrs"

Re:Copyright term is now three years? (1)

ScrewMaster (602015) | more than 5 years ago | (#28508665)

This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years.

It has nothing to do with the duration of the copyright, just the amount of time you can let pass without filing a lawsuit.

Personally, given what's going on in the copyright world right now, if the term was reduced to an effective three years that wouldn't particularly bother me.

Re:Copyright term is now three years? (1, Redundant)

bushing (20804) | more than 5 years ago | (#28507363)

This sounds like a great boon to all mankind - a single judge gets to decide something that basically means the term of copyright is now three years. Right?

Wrong. The defendant's lawyer (not a judge) is arguing that the statute of limitations on the alleged infringement (not the term of copyright) is three years.

The issue is not "How long does copyright last?". It is "How long can you wait to accuse someone of a crime?"

Re:Copyright term is now three years? (1)

mikelieman (35628) | more than 5 years ago | (#28508681)

Well, here's a thought...

Does any of the material at the center of this dispute even really QUALIFY for Constitutional protection?

If you recall, the Copyright Clause reads:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

So... I'm at a loss as to how their Entertainment Product meets the Constitutional requirement of "promot(ing) the Progress of Science and useful Arts"... AutoCAD, sure.. You build bridges with AutoCAD. That's a damned 'useful Art'...

Re:Copyright term is now three years? (0)

Anonymous Coward | more than 5 years ago | (#28509231)

I'm willing to bet that a lot of people think that the term of copyright being 3 years would be a good thing. Hell, I'd guess that there are quite a few that think that would be too long still.

By Neruos (3, Informative)

Anonymous Coward | more than 5 years ago | (#28507101)

They both will lose and the RIAA will win, this will continue until you get the government to cut its bond with the MPAA/RIAA and its unlawful backing of a capitalist consumer entertainment product via the FBI.

"Not to allow her to make it" (0)

unity100 (970058) | more than 5 years ago | (#28507275)

get a LOAD of that BULLSHIT. what kind of twisted system is american legal system that, a judge can DENY a legal move by any of the parties. hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

Re:"Not to allow her to make it" (4, Interesting)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#28507333)

hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

Don't worry. There is no way on God's green earth that the judge would even consider precluding Ms. Amurao from making a cross-motion for summary judgment. That would be the most flagrant kind of appealable order. The RIAA lawyers' request that Ms. Amurao's cross-motion not be considered by the Court will be denied.

Re:"Not to allow her to make it" (4, Informative)

bushing (20804) | more than 5 years ago | (#28507447)

get a LOAD of that BULLSHIT. what kind of twisted system is american legal system that, a judge can DENY a legal move by any of the parties. hey ! i have evidence ! but i cant use it - why ? because IT IS DENIED BY APPLICATION OF THE OTHER PARTY.

The judge made a deadline for each lawyer to submit "motions" - letters that say "this case is invalid, because [xxx]". These letters are very common, since there isn't much to lose by trying.

The judge then extended that deadline to later. The defendant sent a letter to the judge objecting to the RIAA's motion, after the first deadline, before the second.

The RIAA then sent a third letter to the judge, pointing out to the judge that the second letter was "too late" (because it was after the first deadline). That's silly, because there was a second deadline, but that's all the letter was. The American legal system may be twisted in other ways, but this is just some asshole lawyer writing a letter to a judge to try to confuse them. There's no "evidence" being denied, and the judge will hopefully ignore the letter.

Re:"Not to allow her to make it" (1)

CowboyBob500 (580695) | more than 5 years ago | (#28510277)

That's still stupid. Anyone should be able to ask for a case to be dismissed at any point in the proceedings. Just because the lawyer and/or defendant hasn't thought of a particular reason by a certain date should still not make that reason inadmissible. Surely what are being judged are the legal arguments themselves, not how fast people can think of them?

Re:"Not to allow her to make it" (0)

Anonymous Coward | more than 5 years ago | (#28513705)

You basically can, but summary judgment is where you get it dismissed after discovery but before trial. You avoid a ton of costs.

There isn't anything stopping you from filing a motion for judgment as a matter of law at any point before it goes to the jury. See FRCP 50. It doesn't mean you're going to get it, but if you file it in good faith, it'll be heard/read.

In Virginia, it's not uncommon to file a motion to strike the evidence after the Plaintiff makes its case-in-chief. We even have a neat rule where the Plaintiff can take a nonsuit, basically a voluntary dismissal without prejudice, any time before the jury returns the verdict. You can do it once as a matter of right and be able to refile. So the RIAA, for example, might sense that it will lose on the verdict, and can just take a nonsuit and refile in the same venue. New jury, try again. Of course, you only get it once as a matter of right. After that, the defense must consent, or it's treated as dismissal with prejudice. So while I'm off on a tangent, just be happy this isn't being argued with Virginia procedure applied.

IANAL, but I am taking the Virginia Bar in a month.

Come again? (0)

Anonymous Coward | more than 5 years ago | (#28509387)

Although the appeal was fully briefed and scheduled for argument May 19th, the RIAA has been asking for postponements of the argument.

It is now June. 28th. Either you're talking about something in 2010, or they've already asked. Which is it?

Confusing summaries are not a good thing, and this one is a doozy.

The pricing seems different: $750/song (2, Interesting)

cheros (223479) | more than 5 years ago | (#28510601)

I note that this case claims a "mere" USD 750 per infringement. This is an interesting low amount.

Other than that, when-oh-when will we finally see sanctions for this sort of legal abuse? I can't see anyone regaining any sort of respect for the law and the legal system whilst this sort of shenanigans continue.

NCL BLogvertisement (0)

Anonymous Coward | more than 5 years ago | (#28510891)

Can we just stick a big free banner ad to NYCL's blog so he can stop boring us and spamming us with his sad attempt to generate more page views?

Keeping quiet (1)

tygerstripes (832644) | more than 5 years ago | (#28511063)

Personally I'm not going to pass comment until NewYorkCountryLawyer has said his... Oh, wait.

Summary? (0)

Anonymous Coward | more than 5 years ago | (#28511191)

No offence to NYCL, but I've got a few problems with this commentary.

Firstly and perhaps most surprisingly, the characterisation of RIAA's lawyers as being somehow panicked or demonstrating fear by asking the judge not to make the summary judgment. We don't know what their 'letter' is, and without knowing what the basis is, we can't know they don't have some kind of legal basis for denying the motion. So let's find out what the basis is before criticising or mocking the attempt.

Also I'm not from the jurisdiction but the summary leaves me in doubt (or just not informed) as to whether 'writing to the judge' is somehow inappropriate or is just a quaint term for a legitimate process. Eg in Australia you can have an application in the judge's 'chambers' which is in reality in open court, with both parties notified and able to appear, and on public record. Is 'writing a letter' ordinary, or somehow inappropriate or wrongful?

Silly (0)

Anonymous Coward | more than 5 years ago | (#28512677)

I wish someone would burn the RIAA's building down, key their cars and BOYCOTT their music. A mass outcry to stop playing the radio, stop paying for itunes, stop buying cds and stop pirating tunes would send a clear meassage to these jokers.

Just say no (0)

Anonymous Coward | more than 5 years ago | (#28515797)

It's this type of crap from the RIAA that convinced me years ago to just no to commercial music sold as a product by the big corporations. Why empower these sleeze bags?

There's plenty of good music from independent artists!

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