Wednesday, February 13, 2008

RIAA responds to EFF amicus brief in Atlantic v. Howell, argues for "making available" right based on "authorization" clause

In Atlantic v. Howell, the RIAA has filed a brief responding to the amicus brief filed by the Electronic Frontier Foundation, arguing that there is a "making available" right, based on the "authorization" clause.


Plaintiffs' brief responding to EFF amicus curiae brief*

* Document published online at Internet Law & Regulation

Keywords: digital copyright law online internet 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 intellectual property






6 comments:

Heidi said...
This comment has been removed by a blog administrator.
Ray Beckerman said...

Dear Heidi

1. I don't know who you are. Even your blogger profile is hidden.

2. I don't understand what your question is.

3. I've rejected a number of your comments as off topic.

Anonymous said...

Second, Plaintiffs’ evidence shows that Defendant distributed the other 43 sound recordings at issue because (i) the whole purpose of KaZaA is to share files with other users, (ii) Defendant intended this purpose when he downloaded KaZaA and created the KaZaA shared folder on his computer, (iii) all 54 Sound Recordings were in Defendant’s KaZaA shared folder,
Well, sure, if you're a parnoid recording industry. However, (i) was not the only


Improved Privacy Protection
More options to protect your privacy.
Search for audio/music, documents, image, playlist, software and video files.
Search for premium content.
Share your own files.
Arrange and organize your files.
View/play your audio/music, image, and video files.
Setup and manage playlists.
Monitor download and upload traffic.

Certainly one could have downloaded Kazaa to manage one's music/video library, contrary to plantiff's claim (ii). Finally, there's no reason (iii) had to be defendant's doing - the RIAA has already testified P2P software searches hard drives for files to share.

Q

Ray Beckerman said...

To my normal readers:

By way of explanation, I've been getting a lot of posts during the past 2 days from a user named "heidi" who I think may be an RIAA troll.

Anonymous said...

First, investigative techniques similar to those used by Plaintiffs in this case have consistently been upheld by the courts, including by the cases on which EFF relies

Once again, very same tired argument that because other courts haven't yet caught on to us using unethical and illegal investigative methods in essentially uncontested actions, you shouldn't either.

Here, Plaintiffs’ evidence establishes that Defendant distributed Plaintiffs’ Sound Recordings both to Plaintiffs’ investigator and to other KaZaA users in violation of the Copyright Act.

Once again, where is your actual EVIDENCE that any "unauthorized" user copied which specific file(s) on which specific dates and times. Your investigator is "authorized". Oh, you don't have any? It's too hard to get that? Since the files were out there "someone" had have copied something? That's nothing more than unwarranted and specious speculation on your part. A tanker car full of Snake Oil you're trying to peddle on this court.

That argument, like many of the arguments EFF puts forth, would immunize online infringement altogether and prevent copyright holders from enforcing their copyrights. Such self-serving arguments have no merit and should be rejected.

And here is the crux of the issue. It's not the court's fault, the Defendant's fault, nor the EFF's fault if laws haven't kept up with the times. And none of the above – especially the court – should be required to "fix" legal deficiencies that have not yet been addressed by Congress. The ugly truth, Mr. RIAA Copyright Holder, is that maybe you actually cannot prosecute file-sharers as copyright infringers under the laws as written. And if that's true, as seems most likely here, you should pack up your briefcases and head home – or to Washington D.C. to press your case there. Far from being rejected as the RIAA wishes in their heart of hearts to have happen, these arguments should be given the most serious of consideration.

the whole purpose of KaZaA is to share files with other users,

Also wrong! If the whole purpose of KaZaA was to share files, the very term "leechers" wouldn't be part of the P2P vernacular.

In the face of this undisputed evidence,

How about in the face of this illegally gathered evidence?

Undisputed this…undisputed that…undisputed everything we call a fact.

Plaintiffs sure love that "undisputed" word.

“the copies made by [the defendant] at the request of the investigator were copyright violations.”

Seems to me here that it wasn't the "defendant" who made the copies in question here. It wasn't like MS walked into the room and told the defendant, "Hey, I need evidence. Will you burn me a copy of your pirated songs so that I may sue you afterwards. And by the way, here's $5 to cover your troubles."

proved a clear case of direct infringement against the [defendant] retailers by showing that the plaintiff’s investigators were permitted to make infringing copies” on cassette duplicating machines with the retailer’s direct assistance.

Again, where's the assistance? Did MS contact the Defendant and ask him how to download files using the KaZaA program? Did the Defendant give them a step-by-step tutorial of the process to use?

There's not room to take on the rest of this document. It is so misguidedly wrong in so many regards that I am left truly wondering how any mind intelligent enough to operate a typewriter could have come up with it.

The bottom line is that the RIAA has no evidence of distribution of any recording to any unauthorized user, no possibility of ever obtaining such evidence since such evidence wasn't created in the first place, and no law to support them in their lack of evidence.

I just hope that the judge is as critical a reader of this document as the average visitor to this site has been.

XK-E

Alter_Fritz said...

XK-E already pointed out some of the nonsense in this brief, and i'm to lazy now to show the others.

Just one question: Did Ira M. Schwartz violated copyrightlaws because he set his name under something in which the assistent for Mr. Gabriel has the copyright in since she is the author? (probably on behalf of Mr. Gabriel who asumingly dictated it to her)