RIAA: N.Y. judge's 'making available' ruling was no setback
The Recording Industry Association of America says a New York judge's ruling earlier this week really wasn't much of a setback for them. In fact, they say they don't mind it much at all.
This is my article from Tuesday to which the RIAA is responding. And here's e-mail from Wednesday that I was asked to attribute to the RIAA's lawyers, which I've reproduced in full:
The statement in the very first sentence of the posting that the court requires the record companies 'to demonstrate that unlawful copying took place' is entirely inaccurate and is precisely the opposite of what the court held. The court specifically held that proof of actual copying or actual dissemination is not required, and that simply making the work available for copying can be a distribution as long as the work was offered 'for purposes of further distribution.' Contrary to the thrust of the article, 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.
It's true that U.S. District Judge Kenneth Karas said that an "offer to distribute" can amount to a distribution (which helps the RIAA). But Karas rejected the RIAA's argument that a Kazaa user who "made available" copyrighted music necessarily violated the law.
The RIAA has served up its "making available" argument in other cases too, including the Jammie Thomas lawsuit that resulted in a $222,000 jury verdict last October. Here's some more detail on why they've been enthusiastic about it.
Whether the RIAA now stands a worse chance of winning in the New York case depends on the distance between their "made available" and "offer to distribute" arguments. For that we'll need to wait to see the group's revised complaint--they have 30 days to submit it--and the court's next ruling.
Update: Fred von Lohmann at the Electronic Frontier Foundation points me toward his writeup of a separate ruling from a judge in Boston, who said that the RIAA must show actual distribution, and "making available" or "offer to distribute" won't do. But it was just a preliminary ruling, so stay tuned for more.
lawyers. IMO the RIAA is sick. They deserve to go belly-up. Sure
file sharing music is illegal, but to assume every illegal download
equals a lost sale is plain stupid. It has been years since I've
bought a 'new' CD. Why doesn't the RIAA sue stores that re-sale
used CD's? I really hope the RIAA does a major stumble, and soon.
Although I am no fan of pirates or piracy, and have never participated in file sharing, I could not imagine how courts would convict anyone of piracy who simply put things in a personal folder, and did not affirmatively share or attempt to share such files with anyone.
There is simply too much potential for abuse under the above theory - and unfortunately, even if there were no potential for abuse, such bad rulings by previous courts - namely, that one did not actually have to "share" to be convicted of "file sharing" could open the door and lead us down the slippery slope of people being convicted for acts they did not actually do (whether they intended to commit the crime or not), or for omissions in other areas completely unrelated to piracy or file sharing.
I applaud this court that had the courage to go against the steamroller that is the RIAA and MPAA.
I do not know all of the details involved in this most recent RIAA case, but I would like to give you my reasoned opinion (personal 2 cents worth) after 25 years of facing these exact same kinds of issues in both the software, graphic arts, and Internet services marketplaces, worldwide.
It is my belief that the courts in this country, and some of the actual copyright laws that are ambiguous at best, have forced the RIAA and record labels to take this path against end users ("consumers") of pirated music ... consumers who sometimes may not even know what they are doing is unlawful.
I also, however, support the proposition that the actual artists should benefit more once pirates are held accountable ... and that all of the money SHOULD NOT go to the attorneys and association executives.
In our case, my small graphics development company here in Virginia is both the original artist, the registered copyright owner, the publisher, the distributor, and the "association" representing digital illustrators, designers, cartoonists, and animators ... even if such representation is limited and unofficial.
We are also members of the Copyright Alliance up in D.C.
The problem we have in this industry, Declan, is that "piracy", especially for unscupulous middlemen, is one of the most profitable business functions anyone could ever get involved in. Anyone. There are absolutely no barriers to entry if our copyright laws (civil and criminal) are not aggressvely supported by all.
Thank you for keeping up this debate.
George
* For any of your readers who are interested, below is the bulk of an article I was asked to write earlier today on this exact same subject.
Take a deep breathe, though ... it's rather long.
************************************************
1. The United States is now falling far behind many other countries in the enforcement, and in the common sense logic and management, of protection of its valuable copyrighted works ... for the first time in our history.
2. The economic impact of this will be in the trillions and trillions of dollars over time (most going directly to the U.S. deficit) and will damage our innocent children and grandchildren far more than those of us in the middle of our careers. Who cares about that ... right? Apparently, many judges in this country don't have children.
"Everything digital should be free" ... right?
Why not everything physical, as well?
3. Let's see if this analogy helps you understand the plight of people who are creative, provide most othe new employment opportunties in the country, and are entrepreneurial. Those that rely on adequate copyright protection to feed their children. And invest in new innovation.
Do you like cookies? Most people do.
Let's say I bake fresh cookies for both my own family to eat, to pay my employees, and to help us all pay our mortgages. They are VERY good cookies. People love them! Thank goodness it it illegal for someone to steal and eat my fresh cookies without permission in this country.
Of course, I have to register the recipes for each one of the cookies indiviudally with the Library of Congress in order to pursue any of these violators in court and collect damages.
Why is that necessary again? I forget. Ask your senators ... or your congressman and/or woman ... or even your local judges. I'm sure they'll know.
Seems to me if the recipes come out of Europe they do not need to be registered at all to get the exact same protection as the registered U.S. recipes. How is that fair? I don't want to have to move my bakeries to France or Bosnia for fair protection. Do you?
Apparently, to many judges, lawyers, politicians, and social renegades (who have probably collectively never baked a fresh cookie in their lives) in this country,those who facilitate, and profit the most from, the organized process of unlawful consumption should not be held accountable at all.
What?
Wait a second, isn't that what the mafia does ... aren't they simply the middlemen? Isn't that what many corporate scandals are all about? Isn't that what got the housing market in such turmoil and crisis? Isn't that why all of us taxpayers had to bail out the investment banker middlemen, so the executives could cash in their stock options and retire comfortably at our expense? Isn't that what Google does routinely to make it's billions over billion? Don't these greedy "middlemen" or "con-men" (your choice) actually create the bulk of the damage in our society? Especially when the Internet is involved.
Or is it the innocent assistant accounting clerk, or factory worker, or working single mom, who eats a fresh cookie on his or her coffee break after reading the sign posted by the middlemen that says "help yourself"?
Doesn't this kind of "middleman exemption" encourage crime ... and protect the person who sneaks into one of our kitchens in the middle of the night, or walks into one of our delivery trucks and helps themselves ... but never actually eats a cookie ... or loads up their trucks and duffel bags with freshly baked cookies ... and then lays these cookies out on cute little middleman plates in the lunch rooms, break rooms, exercise rooms, classrooms, and board rooms all around the country ... and even throughout the world via the Internet?
Who is causing the bulk of the damage here? Devious middlemen or innocent unaware consumers and cookie lovers?
How can an intelligent judge ... or politician ... or business person look anyone who bakes cookies in the face and say these middlemen have no responsibility for causing and facilitating these crimes ... and should not be held accountable?
Who, other than the dishonest middlemen themselves, is buying into this garbage?
Can you imagine trying to prove which people actually ate a fresh cookie without having access to their internal organs or their waste. Get real!
Until this country decides to start holding the middlemen, and those who rake in virtually all of the money from these illegal piracy and counterfeiting operations, accountable (just as the Chinese now do!), we will continue to lose ground on the world economic stage. Eventually, we will be relegated to an also-ran. Wanta bet?
Wait and see what happens if we don't fix these problems ... and fix them soon!
We need to wake up the United States and wake them/us up now! Intellectual property, and fresh cookies, are only the tip of the iceberg. We need specially trained Intellectual Property judges (just like we are now training for Turkey here in the U.S.) ... not simply a bunch of aging dinosaurs ... to try these cases.
We need rulings that have teeth. We need rulings that are logical and make sense to an average human. We need rulings that serve as a deterrent against further additional crimes. We need rulings that make piracy unprofitable for the mafia, and the other middlemen. We need to see some of these folks in jail.
Wake up up America. Wake up anti-copyright folks. Particularly those of you who have children. Your most valuable, and delicious, fresh cookies are being methodically stolen out from right under your noses. And the middlemen are laughing all the way to the bank ... as they see see more and more innocent folks getting hooked on fresh "free" cookies, and contining to gain excess weight ... while all the while, and all the money, is being scraped off by the greedy in the middle of the process.
And to make matters worse, the middlemen are using the money to develop new drugs to cure overweight consumers so the process can begin all over again once all the fresh cookies are gone.
Hope this helps a little anyway ... or at least gives everyone another way of looking at this collective dilemma.
And one that will likely negatively impact us all (left, right, and center) over time.
Enjoy your day.
George P. Riddick, III
Chairman/CEO
Imageline, Inc.
griddick@imageline2.com