Tuesday, February 27, 2007

Elektra v. Barker "Making Available" Oral Argument Now Available Online

A transcript of the January 26th oral argument of defendant's dismissal motion, before Judge Kenneth M. Karas, in Elektra v. Barker, which dealt, among other things, with the issue of whether or not "making available" is a copyright infringement, is now available online:

Transcript of January 26, 2007, Proceedings, Elektra v. Barker 1:05-cv-7340 KMK (USDC, SDNY)*

(Ed. note:The transcript was purchased and made available to us by "A Friend of the Fight". Thank you, "Friend".-R.B.)

* Document published online at Internet Law & Regulation

Commentary & discussion:


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


Ryan said...

Just curious but was a schedule set for the Judge to make a decision on this or is he still pondering?

Alter_Fritz said...

First of all: I think this Judge Karas is cool!
What I like the most (beside the fact that he owns an iPod and seems to know and understand what he must rule about) is how he shut off the RIAA lawyer Gabriel at the end of the session when that lawyer came up with this totally stupid comparison between criminal law and civil copyright law;

MR. GABRIEL: Just one point, your Honor, and I will stand up because it is a point

that came up in rebuttal and not before. Mr. Beckerman argued that it is black letter

law that our investigators downloading is not distribution.

THE COURT: And you are not the public, right?

MR. GABRIEL: He is just wrong. The cases deal with, say if you own the exclusive

right you can't infringe. That means I can't sue my investigator. It has nothing to do

with the defendant distributing. The cases don't say that it is not a distribution. The

criminal law would fall apart in the drug world if you say you can't indict someone for

distribution when the government's investigator is the one you sold to. I submit it is

the same context.

THE COURT: Well, I mean, you had me up until the last point because the

difference is when -- the government isn't the copyright holder of drugs.

MR. GABRIEL: No, that's right. But the point is --

THE COURT: I mean, there is conspiracy theories out there, I know, but I am not

going anywhere near that.

MR. GABRIEL: That was just my analogy.

THE COURT: I got you.

MR. GABRIEL: But this Court understands.

THE COURT: It is a Friday afternoon. I want to thank the lawyers for their papers

and the argument.I want to thank amici for their very helpful papers as well. And I will

get you an answer as soon as I can. I am going to reserve which is not the same as

punting. Have a good weekend, all.

That was smart "the GOV isn't the copyrightholder of drugs" :-)

What i personly find interesting is this one where Richard IMO accidently give away what the labels are up to after all: Changing the copyrightlaw from it's original purpose to enrichen the public to enrichen now only those greedy old business dinosaurs:

MR. GABRIEL: And I take it the Court is being charged with asking what does the copyright statute mean today. And, again, I would submit that it is --

THE COURT: No, no, no, no. Because it doesn't change --

MR. GABRIEL: No. Then today was in the wrong place in the sentence.

THE COURT: Yes. Okay. Careful.

MR. GABRIEL: The issue before the Court today involves -- that's what I meant to say. Excuse me.

THE COURT: Sure. No problem.

also interesting his argument that they don't need to give any dates or times of infringements in their complained even though he claims they have the times recorded. And to ask if they can do it "another way" is bold (I alledge here that he was already referring back at that court session to "their way"; without courts at all but directly via ISPs and special discounts!)
THE COURT: What, exactly is -- the way you have framed this by attaching exhibits

A and B, are you alleging or basing this on actual dissemination of the sound


MR. GABRIEL: Yes. And we specifically allege actual dissemination and making

available. Our investigators downloaded all of the recordings on exhibit A, those eight

recordings. That is hard evidence of distribution, actual distribution.

THE COURT: Because she has made them available and your investigators took

advantage of that by downloading it.

MR. GABRIEL: That's correct. Actual distribution.

THE COURT: All right. And at least that is alleged -- you can allege then when you

your investigators did that, could you not?

MR. GABRIEL: We can allege the date, yes. And, again, I don't know that we have

to. Although I do believe -- I can't remember if there are dates on Exhibit B or not to

tell you the truth, I don't have that right in front of me. But I, again, submit your Honor

that's an evidentiary issue. None of the cases talk about notice pleading.

THE COURT: I know.

MR. GABRIEL: I understand.

THE COURT: I'm asking anyways.

MR. GABRIEL: Yes, I understand.

THE COURT: You can tell me you don't want to answer.

MR. GABRIEL: No, no. I'm happy to answer but I wish I had Exhibit B in front of me

but I don't.

THE COURT: Do you mean A or B? Because A does not list the dates.

MR. GABRIEL: Right, that's correct. B at the bottom, is there a date on there? I

don't recall.

THE COURT: I don't see any dates at the bottom. I don't see any dates anywhere


MR. GABRIEL: I do know -- and again, your Honor, based on the cases that we've

had, could we do it another way?

Anonymous said...

Quite an interesting transcript. While Mr. Gabriel was using a lot of bad analogies (like the comparison between copyright law and drug law) and a lot of what seemed like bad facts, one particularly struck me. On page 21 of the transcript Mr. Gabriel says, "You don't download 611 songs very quickly. So it would have had -- it would have happened over some period of time." He states it as if had to have occurred over a long period of time, which is not true. For example, I can rip 611 from say 60 cds, with over 10 songs per cd, that I own (ripping this many cds at once is
quite common these days as transferring music from cds to mp3 players is well
within a consumer's rights and it only takes a few hours to do) and then
transfer them from my desktop computer to my laptop. With the whole sony
rootkit problem, even in their terms of agreement that they force you to agree
to before installing the malicious rootkit program, I think that they state
that you have the right to have 3 copies of a cd, either in backup cd format
or in mp3s (I'm not completely sure how many copies they stated that you
are allowed to have). But anyway, I can easily transfer these 611 songs
from MY laptop computer to my desktop computer over a 100mbps network in only a few minutes. It seems like this was the only time frame he offered the court as to the length of the "continued" distribution/infringment/whatever (that prat of the argument was quite heavy). Anyway, the more nonsense these RIAA lawyers keep using the harder it's going to be to get any technical facts/arguments taken seriously.

raybeckerman said...

ryan, the Judges do not commit themselves to a date. Nor should this Judge. It is too important that he get it right. The decision could be weeks away or months away or many months away. When it comes, it will come.

raybeckerman said...

Dear alter_fritz, he is an excellent judge.

raybeckerman said...

lee, their lies are starting to catch up with them.