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Judge rejects RIAA's "making available" claim
From: David Farber <dave () farber net>
Date: Tue, 26 Feb 2008 00:46:33 -0800
________________________________________ From: Richard Forno [rforno () infowarrior org] Sent: Monday, February 25, 2008 10:47 PM To: Infowarrior List Cc: David Farber Subject: Judge rejects RIAA's "making available" claim http://www.p2pnet.net/story/15049 Judge nails RIAA Œmaking available¹ claim p2pnet news | RIAA News:- The mainstream media have already completely missed one of the most important events so far in the ongoing, and always vicious, fight between Warner Music, EMI, Vivendi Universal and Sony BMG and their own customers, whom they¹ve ignominiously labelled ³criminals² and ³thieves². Last week Dutch P2P expert Johan Pouwelse deconstructed RIAA Œexpert¹ Doug Jacobson¹s Œexpert¹ testimony, calling it ³borderline incompetent² and saying allegations of copyright infringement levelled at a 57-year-old New York home health aide were ³unproven². It went virtually unmentioned. Will they similarly also miss what¹s quite possibly the most important development so far? Connecticut district judge Janet Bond Arterton has thrown out the RIAA¹s infamous ³making available² claim which comprises the bottom line for all the Big 4 P2P file sharing cases. ŒProve it!¹ - she says in effect. Under the claim, the RIAA tries to assert merely having a shared files folder that can be accessed is copyright infringement, a specious argument already explicitly dismissed by judge Marilyn Hall Patel in her Napster decision. In Canada, justice Konrad von Finckenstein ruled, ³No evidence was presented that the alleged infringers either distributed or authorised the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer user(s) via a P2P service.² Then a year later almost to the day, New York social worker Tenise Barker came under attack with the RIAA arguing that simply making a file available in and of itself constitutes a copyright infringement. ³Were the courts to accept this misguided view of copyright law, it could mean that anyone who has had a shared files folder, even for a moment, that contained copyrighted files in it, would be guilty of copyright infringement, even though the copies in the folder were legally obtained, and even though no illegal copies had ever been made of them,² Ray Beckerman, one of the attorneys representing Barker, told p2pnet. Matt Foster, a lawyer with Indiana Legal Services, unearthed this latest case, says Beckerman in Recording Industry vs The People. In Atlantic v Brennan, in a 9-page opinion (pdf), district judge Janet Bond Arterton ruled the RIAA has to to prove ³actual distribution of copies² and can¹t rely on the mere fact there are song files on the defendant¹s computer, and that they were ³available². ³This is the same issue that¹s been the subject of extensive briefing in two contested cases in Elektra v. Barker and Warner v. Cassin,² says Beckerman. Arterton also held the defendant ‹- who wasn¹t even present at the decision ‹- had other possible defenses, such as whether or not the RIAA¹s efforts to claim $750 for each allegedly infringed song is unconstitutional, and possible copyright misuse flowing from the record companies¹ anticompetitive behavior. Definitely stay tuned for this one. ------------------------------------------- Archives: http://www.listbox.com/member/archive/247/=now RSS Feed: http://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com
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- Judge rejects RIAA's "making available" claim David Farber (Feb 26)