Friday, August 24, 2007

RIAA Cites New Pro Se Case on "Making Available" to Judge Karas and Judge Robinson in Barker and Cassin cases

The RIAA has written to Judge Karas in Elektra v. Barker and to Judge Robinson in Warner v. Cassin, to bring to their attention a new decision on the "making available" issue, which was issued in a pro se case, Atlantic v. Howell in Arizona. In an unusual tactic, they mailed their letters but did not file them electronically as the Court rules require.

Lawyers for Ms. Barker and Ms. Cassin responded to the RIAA's late submission, pointing out to the judges that (1) Mr. Howell had no legal representation in Howell, (2) the judge in Howell made incorrect references to 3 other decisions, and (3) the judge did not explain how 'making available' could fulfill the requirements of a "distribution" under 17 USC 106(3).

August 22, 2007, Letter of Richard J. Guida in Elektra v. Barker Transmitting Atlantic v. Howell*
August 22, 2007, Letter of Brian E. Moran in Warner v. Cassin Transmitting Atlantic v. Howell*
August 24, 2007, Letter of Ray Beckerman Responding to Guida Letter*
August 24, 2007, Letter of Ray Beckerman Responding to Moran Letter*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica

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


mhoyes62 said...

Is it usual to say a court holds to certain facts, when the judgement does not say that the "Court holds that ...". Most of the rulings I have seen, and I admit that they are few, all have language like that, yet in this case, I see an analysis section, and it says that having files in a share folder "may" constitute distribution, not that it does. It seems to me, in the reading of the ruling, that the case was decided based on the deposition of the defendant, more than holding to any particular rules of standards. Is this how you see it too?

AMD FanBoi said...

What rankles me more about these judges than most other things is how the RIAA Plaintiffs rely on pro se cases, and a letter from Marybeth Peters, a "employee" in the copyright office to a United States Representative, Rep. Howard L. Berman (a known filesharing foe), giving her "opinion" on the law that "making available" constitutes "distribution". This is so BACKWARDS for an employee of the US Government to be telling a member of Congress what the law as written means. Before this letter should ever be admitted or considered by any court, Marybeth Peters should be deposed firmly by the Defense as to her qualifications to even offer such an opinion, what her expertise in the Internet, and the KaZaA program in particular is, and why anyone else should ever take her seriously on anything she says! After all, she's supposed to "enforce" the law, not "write" it!

Alter_Fritz said...

AMD, correct me if i'm wrong, but this Merybeth, isn't she jsut supposed to do some clerical works like filing those applications for copyrights and this kind of stuff.
I mean she isn't something like those copyright royalty board judges or anything like that, is she?
She has nothing to do with "enforcement" of law in the sense how I understand "lawenforcement", but she is just like a "secretary" that does only some typical clerical secretarial work, has she?
(no offence to hard working secretaries here, without you hard working (mostly) womans, would some CEO's of well known companies be lost)

Travis said...

So if the court holds that making available is the same as distribution does that mean that if I set a hard copy of a CD down in a public place, say an airport, that I'm guilty of distribution?

raybeckerman said...

travis, the point you're making is the same point Judge Karas was making during the Elektra v. Barker oral argument

AMD FanBoi said...

Alter Fritz,

Ray can certainly answer your question better than I can. Certainly Marybeth is someone of some high position in the US Copyright Office.

Even so, however, it's her job to ENFORCE THE LAWS AS WRITTEN by Congress, not offer up her own personal interpretations of what these laws mean to the most pro-Hollywood member of the House of Representatives. And she's hardly an authoritative source whose "opinion" is beyond question by the court, or the Defense. Especially after her "testimony" has been introduced into this discussion by the Plaintiffs.

raybeckerman said...

Russell, I rejected your comment because it misstates the law in several respects.

1. Statutes take precedence over regulations. Any regulation which is inconsistent with the enabling statute is ultra vires and invalid.

2. Ms. Peters was not acting in accordance with any rulemaking authority. She was writing a letter.

Please keep things accurate.


Reluctant Raconteur said...


1. I guess I didn't make clear that the statue has precedence because I thought that was self evident. Perhaps I should rephrase it as a question.
Are any of the issues in this case defined by regulation?
How is a regulation declared invailid if not by the courts?
2. Noted

raybeckerman said...

No there are no regulations involved here.