Judge to RIAA: You can't sue over songs 'made available' via P2P
A federal judge in New York has dealt the Recording Industry Association of America a setback in its thousands of lawsuits over piracy on peer-to-peer networks.
In a widely anticipated decision, U.S. District Judge Kenneth Karas ruled Monday to reject the RIAA's claim that a Kazaa user who merely "made available" copyrighted music necessarily violated the law. Rather, he said, the RIAA would have to demonstrate that unlawful copying actually took place.
"Plaintiffs' allegations--insofar as plaintiffs wish to hold defendant liable for acts of infringement other than actual downloading and/or distribution--fail to state a claim," Karas wrote.
This is not necessarily fatal to the RIAA's lawsuit against Tenise Barker (referred to as Denise Barker in some court documents) that will continue in the Southern District of New York. That's because the music labels also have alleged that she actually did distribute copyrighted works--meaning that if they can prove that happened, which is more difficult, they can still win.
A few characteristics make this case unusual. First, New York federal judges are viewed as well-versed in copyright law, so Karas' decision is likely to be influential. Second, an unusually large number of outside groups filed briefs, including the U.S. Internet Industry Association, the Motion Picture Association of America, the Electronic Frontier Foundation, and the Computer and Communications Industry Association, meaning the court benefited from a range of views and increasing the importance of this week's decision.
Finally, the Bush administration jumped into the case on the part of the RIAA. The Justice Department's brief calls EFF's arguments "misleading" and says that the World Intellectual Property Organization treaty--signed by the United States--covers "making available" copyrighted works.
The "making available" argument is the same legal theory that the RIAA's attorneys relied on in the Jammie Thomas case, which led to $222,000 in penalties in October. The jury instructions said that "the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution"--meaning all they had to do was claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded.
Thomas has said that her appeal to the 8th Circuit will center on whether or not "making available" copyrighted works--on the theory that they could have been downloaded--should be unlawful even if there's no evidence any transfers took place.
Other courts have considered this topic in lawsuits filed by the RIAA, but more briefly. 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.)
As I wrote last fall, there are some dangers if the RIAA's "making available" theory is widely adopted by courts. 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?
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.
No appeals court--that I know of, at least--has ruled on exactly this point. Now it's teed up for the 8th Circuit (the Thomas case) to consider this year, and the 2nd Circuit (the Barker case) to hear sometime later. The outcome will be worth watching.
Update 4/1 8:01 p.m. PDT: While the judge rejected the RIAA attorneys' "making available" argument, he did provide them with a road map showing a detour that might still allow them to arrive at their destination. Specifically, he ruled that an "offer to distribute" can amount to a distribution. The RIAA needs to, he wrote, "affirmatively plead that defendant made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." Look for the RIAA's revised complaint--it has 30 days to resubmit it--to argue just that.
Update 4/3 12:22 p.m. PDT: Here's the RIAA's response, which says in part that "the court did in fact agree with the record companies that 'making available' a copyrighted work under those circumstances is an infringement. But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire "making available" issue irrelevant."
(Note: This is not an April Fools' joke, by the way. News.com published three April Fools' articles--I wrote one--and we clearly labeled them. Sometimes you can trust what you read on 4/1.)
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. 
Administration that "makes available" applies because of an
international law. This is the same argument made by some of
the liberal justices of the Supreme Court in trying to overturn US
law. I believe we are on a slippery slope to losing our rights as a
nation just as we have lost control of our borders.
the law of the land, right? You seem to think that we're giving
something up by some process because of treaties - we're not.
They've always been the law of the land.
certain materials might be illegal and the users are responsible to
any copyright infringement. That's where fair use came in, which
limits which amount of duplication is acceptable. Yet the libraries
make a nice profit with those machines... but we are not seeing
every publisher getting their "fair" share (yet).
Industries can't exploit laws that don't exist.
for media sharing. If you steal $6 work of milk and bread, you
are likely to receive a sentence commensurate with the value of
those products. But if you download a single CD with a retail
value of $13 you may be penalized thousands of dollars.
Reports say that RIAA is trying to convince (i.e., buy) congress
to raise the penalty for copying a multi-artist collection CD to
over $1 million. The penalties for sharing are similarly absurd.
The problem isn't so much the letter of the law as it is the life-
destroying penalties for actions that, in many cases, have very
slight effects. And let us not overlook the new report claiming
that not a penny of the $400 million raised in lawsuits by the
RIAA has been distributed to the artists.
The problem with the milk and bread analogy is that unless you are Jesus of Nazreth, you can't feed millions of people with just a loaf of bread and a carton of milk. Files can be copied ad infinitum.
Which comes back to the problem of how many files were downloaded.
Personally, I think the record companies should stop making and selling recordings, then they would stop losing money from copying and downloading. They'll save it all! What will they do with all that money?
(They just don't get it, do they?)
Now that the Bush administration has gone on record (pun) by supporting international law and treaties, by extension they must accept all the rest.
Geneva Convention, and so on. That'd be an 'oops!'
- by columbia1 May 16, 2008 9:26 PM PDT
- The text of the brief clearly shows that the Bush Administration has never endorsed the making available theory. Rather, it merely notes that it exists in international treaties and that any adverse ruling may affect those treaties, not U.S. law. They may one day make an argument for it, but they have not done so yet. Also, one of the leading making available cases centers on a library that allowed a copyrighted book to remain on its shelves after the copyright owner had complained. The RIAA actually heavily relies on the library analogy to support their making available theory.
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