Thursday, November 08, 2007

Warner v. Cassin "Making Available" Case Scheduled for Conference on Friday, November 16th, in White Plains, NY

The RIAA's argument that merely "making files available" is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), was briefed again in White Plains, New York, in Warner v. Cassin.

Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3); Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the internet.

The case is scheduled for a conference on Friday, November 16h, at 10 AM, at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public.




Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs






6 comments:

Sureta said...

'Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the internet. "

Every library and DVD rental store would be guilty under such a standard, since they all make copyrighted material available to people other than the original purchaser.

Anonymous said...

I may be wrong (and often am), but it appears to me that this is a Huge moment in these cases. I hope this battle will be well and truly fought. Losing at this point would seem to undo the RIAA's only real argument.

Nohwhere Man said...

I'm not sure that DVD rentals would come under the making available infringement, as far as I know the disks/content are licensed for rental (and extra fees are paid). OTOH, I've said here before that any library would likely be in violation, as would any person that lends a legally purchased disk to a friend, or possibly even allows someone else into the room with those disks.

Just to try a theory- I buy a DVD at retail. I then sell it to a friend for a dollar, then they sell it back to me for a dollar. Since the "first sale" doctrine comes into play, did I make it available for infringement per the RIAA?

Sureta said...

"I'm not sure that DVD rentals would come under the making available infringement, as far as I know the disks/content are licensed for rental (and extra fees are paid)."

Actually, no. DVD rentals are entirely based on the doctrine of first sale which allows the purchaser to do what they want with the purchased product (other than copy it).

If you remember the early days of home video there was always a warning which not only said the video was for home use but was not to be rented--an example of **AA types asserting more legal rights than they actually had.

The studios fought and lost their attempts to demand royalty revenue for home video rentals and instead set up a two tiered pricing scheme, initially releasing videos for around $90 to squeeze money out of rental stores, and then a few months later reducing pricing for "sell through" at $25 for consumers to buy directly. They've since dropped this system and gone directly to marketing to consumers.

Today, a number of national chains have licensing agreements with the studios. Blockbuster buys videos for cost and deals the studios in for a cut of the profits. This is why Blockbuster can offer deals like "we have it in stock or its free" since their unit cost is so low. Regular mom and pop stores have to pay full price for each copy--but they don't have to pay any royalties since home use isn't a public performance.

However, clearly DVD rental stores are "making available" since they hand out disks to just anyone and those people could be doing anything with those disks, unsupervised, in their homes. They could even be using the disks for public performances in public.

Note, selling the original item isn't what invokes the "making available" argument. First sale doctrine protects reselling or rental for home use of the original purchased media. Making available is invoked when you make that original available and someone uses it to violate copyright by making a physical copy--like when someone photocopies a page of a book at a library. Note that making available specifically doesn't involve violating copyright but being the vector by which someone else does, or could. In real life making available is a ridiculous theory since it doesn't involve the defendant committing a copyright violation or even intending to do so. It is really beyond being a thought crime since the "perpetrator" doesn't violate copyright law nor have to even intend to aid someone in doing so.

"Making Available" is prosecution of someone who cannot be demonstrated to have committed copyright infringement. Such a lax standard of evidence and such a broad theory of copyright deserves an ignoble dismissal.

Anonymous said...

If 'Making Available' is punishable, where is the line crossed if a)copyrighted files are available on a share, b)unauthorized access is gained, and c)files are downloaded ?

sureta said...

"If 'Making Available' is punishable, where is the line crossed if a)copyrighted files are available on a share, b)unauthorized access is gained, and c)files are downloaded ?"

The RIAA says "a," if files are "available," regardless of whether they have been found, viewed or downloaded by anyone, ever. Which, of course, is preposterous, especially since there is no "intent" component. This means that the RIAA would argue that people who's computers are hacked into by criminals are "making available" since the RIAA doesn't care if, or how, songs were downloaded. All they care is that Media Sentry gives them an IP alleged to be infringing (well, making available, supposedly) and they get the ISP to give them the name of the person who's account was allegedly associated with the IP at the time of infringement (well, actually, alleged making available :-p ). That's all they care about. Nothing else matters. Not if the alleged facts are true, whether the account holder ever used a computer in their life, not even if the account holder is dead.

And why should RIAA lawyers care? (Well, other than professional ethics...) Since all hours are billable and the most convoluted and tenuous cases aggressively pursued probably earn more billable hours than meretricious cases?