Will appeal succeed in RIAA's $222,000 'making available' case?
The Minnesota woman who was slapped with a $222,000 penalty for "making available" songs on the Kazaa network is appealing her loss.
But can she actually win against the Recording Industry Association of America?
There's probably a 50-50 chance. On one hand, the RIAA has won some minor victories in the last few years with its "making available" arguments to expand copyright law beyond what it actually seems to say. Now that there's finally going to be some serious public and judicial scrutiny, however, the odds are closer to even.
(If the RIAA wins, by the way, the precedent would create some real dangers for innocent users. But more on this later.)
[#1] What's important to remember here is that the RIAA's victory rests in large part on, as I wrote last week, the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point.
To understand how this will play out, let's start with the plain text of the relevant part of federal law. It says:
17 USC 106: The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
Illicit distribution of copyrighted materials over Kazaa involves paragraphs (1) and (3). Those paragraphs restrict the unauthorized "reproduction" or "distribution" of music--which sure doesn't seem to cover Thomas leaving songs in her shared directory if they were never actually downloaded.
So how can the RIAA get away with this? This is where things get murky. The definition of "publication," which the U.S. Supreme Court says is the same as distribution, says: "Offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."
[#2] Some courts have interpreted that to mean proof of actual copying is necessary; others haven't. Take a 1997 case involving the Church of Jesus Christ of Latter-Day Saints, sued by genealogical researchers who sold their copyrighted work on microfiche. Instead of buying multiple copies, the Mormons bought only one, made copies, and sent the duplicates to their branch libraries.
The copyright-holding genealogists took the position that the RIAA does today. They claimed that merely proving the copyrighted work was available was good enough. In response, the church argued that the researchers needed to show a library patron actually had read the pirated microfiche.
The RIAA's argument won. The 4th Circuit concluded by a 2-1 margin:
We agree with the (researchers). When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of Section 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.
Because a split decision in a different federal circuit a decade ago in an unrelated case may not be entirely persuasive, the RIAA has invoked other arguments as well. And they've had some preliminary success.
Among them: 1. The WIPO copyright treaty, which the United States has ratified, covers "the making available to the public" of copyrighted works. 2. Marybeth Peters of the U.S. Copyright Office says that making a file "available for other users of a peer to peer network to download...constitutes an infringement of the exclusive distribution right, as well of the reproduction right." 3. Having child pornography in a Kazaa shared folder is, at least in the 10th Circuit, good enough to support a conviction in a criminal case. 4. The 9th Circuit believes that copyright law was infringed when peer-to-peer users "make their collections available to all other" users.
[#3] Those are strong arguments. But there's another side to the story as well (which is why I believe that Thomas has a 50-50 chance): WIPO is not binding by itself; Marybeth Peters' opinions aren't as important as what the law actually says; a civil dispute is different from a criminal prosecution; and so on.
Not all judges in the RIAA cases have agreed with the music industry's lawyers. In a preliminary ruling in Interscope Records v. Duty, a judge said last year: "To be clear, we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology at this stage..." At least two other courts have followed that line of thinking.
In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that: "At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs." (Emphasis added.)
Most judges, though, haven't spent too much time puzzling through the implications of "making available." One exception is U.S. District Judge Kenneth Karas in Elektra v. Barker, who has heard arguments from not just the RIAA but also the Electronic Frontier Foundation, the American Association of Publishers, the Motion Picture Association of America, the Computer and Communications Industry Association, and the U.S. Department of Justice. The Justice Department, by the way, sided with the RIAA. A decision from Judge Karas is expected at any time.
All those cases receive something of a boost from U.S. District Judge Marilyn Hall Patel's 2005 ruling in an offshoot of the original Napster litigation. Patel is no tech-neophyte; she presided over Napster, a 1990s-era encryption source code case, and the recent Americans with Disabilities Act lawsuit over Target's Web site. She wrote:
The gravamen of the parties' dispute lies in whether the Copyright Act requires proof of the actual dissemination of a copy or phonorecord in order to establish the unlawful distribution of a copyrighted work...If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it was perfectly capable of doing so. Yet plaintiffs have failed to identify anything in (the law's) legislative history, much less the statute itself, to suggest that Congress even considered the scope of civil liability for copyright infringement in enacting the statute. Any attempt to infer legislative intent from such silence is at best speculative.
[#4] I said at the beginning of this article that if the RIAA wins on "making available," the precedent would create real dangers for innocent users. That's because the awesome weapon of copyright law can be turned on people who only mistakenly ran afoul of it.
The case of the Mormon church buying only one copy of the microfiche for multiple libraries was pretty straightforward: the purpose of any library is to distribute information, and intent to distribute can be assumed.
But computers are far slipperier than libraries (or, put another way, we're all libraries now). If my mother accidentally shares her computer's entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that "making available?" Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?
If I don't upgrade to a newer version of my operating system even though I know there's a security glitch that opens my hard drive to the Internet, does that mean I'm "making available" my music collection? Do Internet service providers "make available" access to Kazaa? Do search engines "make available" links to infringing files?
"It's hard to distinguish having something in a Kazaa shared directory versus having it on my shelf and not locking my door or having it on a computer and not bothering with a firewall so the college kids--who I know full well live next door--can hop on and take it," says Jessica Litman, who teaches copyright law at the University of Michigan and is the author of Digital Copyright. "If the RIAA eventually wins on this one, it would be a ruling I'd be willing to say is wrong," Litman added.
These are not all easy questions to answer, especially because intent doesn't matter much in copyright law. It's what lawyers like to call a strict liability offense--meaning that even accidental "making available" can slap you with a $222,000 penalty. This might make sense for corporate defendants, but it gets bizarre quickly when applied to hundreds of millions of Internet users.
It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan. 
I say, by the logic used to decide the case against her then one could also legally be known as an elephant simply because one owns a bag of peanuts.
This was the most ridiculous verdict based on the worst kind of evidence, this sort decision was never supposed to be allowed to happen in our great nation. Guess we are now subjects to the RIAA, FDA, MDA, and about any other 3 or 4 letter Association or Administration you can mention, and they come with an entire army of other 3 and 4 letter thugs to enforce their rule, FBI, CIA, DEA...
Any judge who tells a jury that they can only decide the facts of the case is a LIAR.
If you think you disagree with me, or you don't know what I'm talking about; Read about how a jury can NULLIFY the enforcement of ANY law.
http://www.law.umkc.edu/faculty/projects/ftrials/zenger/nullification.html
http://www.fija.org/
http://en.wiktionary.org/wiki/jury_nullification
Or maybe they'll just keep on trying to get that damned genie back in the bottle.
Bad enough the over inflated price of crap CD's (which is actually
main reason CD sales have steadily plummetted).
Or the record labels charging artists for things like "breakage"
on digital downloads.
Or forcing "slave like" contracts on young hopeful artists for
decades and telling them "This is the just 'standard' contract"
(wink).
Where music Greats like Little Richard or Willie Nelson are
bankrupt.
Or someone like Prince has to legally change his name.
Now we let them extort Grandmothers and Single Moms for
thousands of dollars with only the threat of legal action or
$220,000.00 for the simple "assumption" that someone shared
24 files with no actual proof that anything was downloaded from
her computer?
They can supeona the RAM chip from a server with all the
private information of people on that server whether they
downloaded anything or not?
What's the fine for a DUI?
What are your standard criminal fines for most crimes?
Some even violent?
But the IRAA gets $220,000?
I think they should be brought up on racketteering charges for
extortion and prosecuted to the full extent of the law under the
RICO act!
Just my $0.02 worth (^_^)
Quit falling prey to the media which forces it down our throats.
Find indy music and movie and spend your money on it.
Buy used and rent from your library.
Trade with a friend, or borrow.
Copy from the tv (digital music)
Learn to live without music..
make your own songs to listen to.
I dont know the answer but the only music I have purchased this year has been from emusic which is indie musicians. I am not saying I havent heard nor listened to mainstream but only when in the car and that is 50% of the time because I get tired of all the ads and talk shows.
If that is the case, Windows 95 and 98 both have sharing on the default drive (C:) turned on automatically, so, given that theory, if you bring one of these OS's online without a firewall, your guilt of illegally sharing everything on your drive. This would include the copyrights and patents on the OS itself even though this is how Microsoft configured the OS 'out of the box'. This is ridiculous.....
Further, many of these P2P applications re-enable sharing even after you manually turn it off. BearShare for example plays these games (where is ask everytime you shut it down if you want to share, and then reverses the 'YES' 'NO' buttons every time it ask - just to confuse and trick people that are not paying 100% attention.).
(copyrighted material) laying on a bench in the airport and
someone else takes it, do I pay $220,000 for "making available" a
copyrighted work? or if I throw it in the trash and someone else
takes it? etc. etc. gets very touchy.....
Even if you use the common legal practice of giving trebled damages then the fair compensation for those 24 songs would be under $75 not over $200,000.
1.) Jinx.com sells Anti RIAA T-Shirts. Everyone who owns an iPod
should also wear Anti RIAA clothing. Wouldn't it be great to see
kids on MTV sporting this swag? Post if you know of other
companies that sell Anti RIAA merchandise.
2.) If you code, participate in a DRM-cracking community.
3.) If you don't code, contact your local newspaper and write an
editorial.
4.) Everyone, tell your local music store managers that you are
not buying RIAA Member music and why.
IF YOU HAVE ADDITIONAL IDEAS PLEASE POST!
Writing an editorial is a waste of time, most editors agree with everyone else. Not like they would even publish the article.
Telling the $5.65 manager of the local music store about your problem with DRM, yeah, sure that will help......
Think a little...
Mugman
included music in the software to be shared.
Given that Kazaa is FOR sharing of electronic files...if the files
WEREN'T downloaded by someone else it wasn't for lack of
trying. This is different from accidentally opening up your
computer for sharing, or even deliberately opening it up for
access within your home network and someone from the outside
hacked in and got access, or the other scare scenarios being set
out.
Do I think the judgement was appropriate? I think the size was
excessive, and if the RIAA has any brains they'll reoffer the
original deal to settle the lawsuit. But if she had Kazaa on her
computer and was sharing the copyrighted music (and the Jury
believed she did), then she was indeed guilty and deserved a
judgement to be brought against her.
If this poor women had the chance to stand in front of a criminal court, all charges would of been thrown out. PERIOD!!!!
Just because she had Kazza installed doesn't mean a damn thing, there are legitimate uses for P2P applications.
There was NEVER any evidence of any wrong doing found on any hard drive in her possession.
ISP's tend to loose track of IP's; often there are a lot of morons working for these companies. Just because some moron with a MCP said it was her doesn't mean anything.
Interesting how the SN in question doesn't resemble the name of her or anyone else in her household.
Mugman
1. Kazaa is a legitimate file sharing program used for illegitimate purposes. If this is your reasoning, they better start suing millions. Kazaa also automatically scans for files without users realizing it.
2. The RIAA can't even actually prove she was the user, distributor or enactor of the file sharing. Hacking is common. All they have is an IP address. Burden of proof barely covers this.
The defendant can't appeal on the facts; she has to appeal on the law.
rather than just having it available.
Bootleggers and counterfitters offer us scads of products in the
hope that they we will buy stuff from them. I can see the law was
aimed at this practice. You build it will will arrest you!!
By leaving something out in "public" so that anyone can freely
use an existing product shoud not be covered by this reading of
"made available". It is different in intention and practice.
Understand that law is just a matter of opinion. Problem is,
judges and lawyers are involved!
Best of luck Jammie. I'm behind you.
In some cases you have to prove actual damages, but in copyright cases you can elect to get "automatic" or statutory damages. This saves the court time.
In the instant case, I would visit a location where the copyrighted work can be found and perform actions resulting in my having a new copy; at the end of the process the original is still where it was at the beginning.
In the library, I visit a location where the copyrighted work can be found and perform actions resulting in my having a new copy; at the end of the process the original is still where it was at the beginning.
Sure looks to me that the only difference is the "actions resulting ..." -- but those are entirely under my control in both cases.
You need to read up on the first sale doctrine. It's fundamental to understanding copyright law.
(I never play original CD's in my vehicle's CD player - a car's environment isn't exactly gentle to polycarbonates, ne?)
/P
Isn't music a natural phenomenon,a vibration?
The artist nor the record company made up notes, they used standard music notes that are in the public domain and arranged them to make a song.
The only reason the artist can make a song is because someone SHARED this knowledge.
So why was music ever copy-writable?
I think the law is making criminals in these cases.
Just because they package and sell it and people buy it does not give them ownership of something that floats freely through the air and was created at the beginning of time.
Why aren't they sueing cover bands making money in every little hole in the wall across the US?
I'm sure thats where they found their artists or a lot of them. I'm sure a lot of the artists were doing cover songs until they made it big.
I can see making money off the packaged product it is a service and product people are willing to pay for but the music has always been free on the air waves to record, are they looking for people recording songs off the radio? I used to lend my albums to friends all the time, now because there is a massive way to share they want to cry foul because of a change in medium. The medium changed when they went to CD's they were cheaper to produce but the price didn't go down and the consumer got less. the record companies are a bunch of cry babies, they still make lots of money they just want more.
Now they are persecuting INDIVIDUALS to make the point.
When they sell the package it should be on them to protect the contents maybe they should make you regiter your CD just like Microsoft does.
- Williams Vs. Warner/Chappell Music
- by Afrimerican October 9, 2007 8:10 PM PDT
- The RIAA, and major music record/publishing companies have an in with the courts because in the past few years, they, like many other industries have began to hirer law firms that have decades old political and Ivy league ties so it's hard for the average citizen to get a real shoot at justice unless they opt for a jury trial.
- Like this Reply to this comment
-
Showing 1 of 2 pages (57 Comments)The first thing is not to admit to anything. second, and what the record companies use and get away with is the "Fair Use" defense.
It seems the young female in the predicate case is a student, thus, a fair use defense is very viable. I have only followed this case on the outskirt of all the details, but it doe'nt seem like she was charging for each use passed on, if she were, her defense is slim.
If no, fair use is the way to go. Then there is the matter of the program used, did she create the music sharing program, or was it acquired from someone else? If she created it, she diminishes her chances, if she got the music sharing program from someone else, she can sue them to cover her losses, and she can bring it up in court and inquire as to what claims, if any have been made against the music sharingsoftware provider.
Lastly, if she has an attorney, he/she needs to be fired, because a qualified attorney would have forseen the possible outcomes, and even if she lost, like she did, the payment would not have been as large.