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See the original image at arstechnica.com —

Judge kills RIAA subpoena: making available not infringement

arstechnica.com — Earlier this week, a decision by the judge presiding over Elektra v. Barker was widely misreported as providing substantial support for the argument that making a song available over a P2P network constitutes copyright infringement. Another decision rendered the same day and just brought to light by the EFF actually does come to that conclusion, an

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  • TheThirdLevel, on 04/04/2008, -24/+108***** the RIAA.
    Need I say more?
    • pigfister, on 04/04/2008, -4/+29well yes you do: ***** all the companies that make up the trade groups as the riaa is just a front for the mafiaa!

      The BPI Are: SONY, UNIVERSAL, WARNER GROUP, EMI.

      The RIAA Soundexchange Are: SONY, UNIVERSAL, WARNER GROUP, EMI.

      The IFPI Are: The same anti consumer lot as listed above!

      The MPAA Are: SONY, UNIVERSAL, WARNER GROUP, DISNEY, PARAMOUNT, FOX.
      • Elranzer, on 04/04/2008, -1/+5***** all those companies... but ***** Sony especially.
      • caramelboogers, on 04/04/2008, -6/+0How is trying to prevent people from stealing your product make you evil?
        • Elranzer, on 04/04/2008, -0/+2Ask all of those sued children and grandmothers who didn't steal anything.
          • Giga, on 04/04/2008, -1/+1I would add "ask the dead people, too" but I don't think you would get much of a response.

            Maybe something along the line of "BRRRRRRAAAAAAIIIINNNSSSSSSS!!!!"?
          • caramelboogers, on 04/05/2008, -1/+0If children and grandmothers didn't steal anything, they would be found not guilty. But they were sued because of some kind of evidence, and there is a trial to determine if that evidence is valid.
    • drmangrum, on 04/04/2008, -17/+6Find a new catchphrase to get yourself diggs. Honestly, "***** the RIAA!" is becoming tired and hackneyed.
      • forgiste, on 04/04/2008, -7/+4how about this, "***** You!" why don't YOU come up with something to get diggs? If that is indeed your only goal.
      • HonoredMule, on 04/04/2008, -5/+12***** the RIAA is timeless.
      • g30ph, on 04/04/2008, -1/+3***** them up their dry asses with a huge pineapple?
      • humperdeath, on 04/04/2008, -2/+1Yea! I say *** 'em, the ****** RIAA is a bunch of ****-holes, the can ******ing kiss my ******! ***** those ******! Oh ****** man the ****** is gonna **** them. Know what I mean! Yes, I ***** said it! ********!
    • sporg, on 04/04/2008, -0/+18Im glad to see they are spending lots of money tied up in legal limbo, excellent.

      This is what happens when the "john Doe" letters they send out are not responded to by the victims. They must take legal channels to reveal the identity of the accused which is very costly and frustrating for them. If people stop foolishly responding to those letters the number of file sharing lawsuits will diminish as they are buried under legal fees while trying to find out just who they want to sue.
      As I have said several times already if you receive any kind of Cease and Desist letter do not respond to it. Do not write to them and do not call any telephone number provided in the letter. Any "pre settlement offer" or deal they are suggesting is a trick to make you phone in to reveal your identity and agree to pay some amount to stop them pursuing legal action. Any phone conversations you have with those hotlines may also be recorded and used as evidence against you later if you admit to sharing the material in question. You have a better chance of winning the lottery than of them actually pursuing legal action.
      If you receive one of these Cease and Desist letters forwarded from your ISP cooperate with the requests of your ISP and remove the offending material. The only other thing you should do is consult with a lawyer. Do not talk to your friends about it and don't post on the internet about it, this spreads rumor and is exactly what the RIAA wants.
      • KirbyMeister, on 04/04/2008, -0/+6Your post needs to be on the front page of Digg
        • DaffyDuck, on 04/05/2008, -0/+3Not only that, it should be a sticky on the front page.
      • humperdeath, on 04/04/2008, -0/+2Roah-RAH!
      • mCanada, on 04/05/2008, -0/+1Ctrl+a "previous post" , Ctrl+c "previous post" Ctrl+v "previous post" | mail agoodstoryidea@torrentfreak.com
  • sroop, on 04/04/2008, -2/+99Next up: "Judge Kills RIAA"...please.
    • Shogi, on 04/04/2008, -0/+6We might hear just that if the case against them for malicious litigation goes well.
    • bonds, on 04/04/2008, -0/+4RIAA does barrel roll, then an hero
  • SirPopper, on 04/04/2008, -15/+8***** the RIAA!
  • iamthearm, on 04/04/2008, -7/+2WTF.... I though I just saw an article one or two weeks ago that said something like "big win for RIAA. Making available constitutes infringement." Something to that effect.
    • nekochan, on 04/04/2008, -0/+8dewey defeats truman.
    • mithrasinvictus, on 04/04/2008, -1/+5Maybe you should read at least the summary before commenting.
      • iamthearm, on 04/04/2008, -2/+0WOW You guys are VERY sensitive. Maybe you guys should read further down the posts. I corrected myself.
        • mithrasinvictus, on 04/04/2008, -0/+1I noticed, and dugg those down too.
          Your thought process took 7 minutes and involved posting 4 comments, all of them a new thread.
          Next time respond to your own thread please.
    • bdbr, on 04/04/2008, -0/+1If you'd have read this article, you'd see that it discussed the Barker case and the disparity between the two court decisions.
  • Zipko, on 04/04/2008, -10/+2***** the police!

    ...wait, what happened yesterday?
  • Ouze, on 04/04/2008, -1/+127"***** the RIAA": adding about as much to a discussion as "first post" since 2000
    • bxblox, on 04/04/2008, -0/+9first reply
    • TheThirdLevel, on 04/04/2008, -2/+2Ok, soon we shall start with "First ***** the RIAA".
      • tippmann1, on 04/05/2008, -0/+3you seem to have put an "r" in fist
    • Jaliyl, on 04/04/2008, -1/+1But saying "First! post" gets you dugg down
      • subliminalurge, on 04/04/2008, -0/+2As should any post that says "***** the RIAA" and nothing else.

        We all agree. If you don't have anything else to say, just save the keystrokes.
    • subliminalurge, on 04/04/2008, -0/+2Perhaps Digg should add some code to just automatically insert "***** the RIAA" as the first comment in any article that mentions them. Then nobody would have to bother.

      It's not that I don't agree with the sentiment. But it's just getting old having to sort through all of the mindless "***** the RIAA" posts to find comments from people who actually have something to say.
    • anchorman, on 04/05/2008, -0/+2Most intelligent comment of the day.
  • iamthearm, on 04/04/2008, -6/+1I'll read it later but this is the article I was talking about:
    http://arstechnica.com/news.ars/post/20080331-new- ...
    • Remmy, on 04/04/2008, -0/+2"I have great news! That gum you like is coming back in style."

      I seriously doubt more than 3 people will get the reference, but look at his user name if you do.
      • Sraza, on 04/04/2008, -0/+2I got it because of that little ***** saying it backwards is burned into my brain.

        mra eth ma I
        • Blandyman, on 04/04/2008, -0/+3Can you let me in on the reference please?
  • Dankoozy, on 04/04/2008, -2/+46sudden outbreak of common sense
    • Durrok, on 04/04/2008, -1/+3I like how /. tags suffice for comments on digg
    • shamanlife, on 04/04/2008, -0/+1Amen. A judge with common sense is a powerful and beautiful force.
  • jigulous, on 04/04/2008, -2/+8What the EFF?
  • iamthearm, on 04/04/2008, -9/+1In regards to my previous post. Here is the article

    http://arstechnica.com/news.ars/post/20080331-new- ...
    • prgmctan, on 04/04/2008, -1/+4you know you can reply to your comments right?
      • iamthearm, on 04/04/2008, -1/+0I didn't think I should reply to my own comment. I will from now on. I guess that's a big deal. Sorry.
  • millsworks, on 04/04/2008, -1/+10It's about frickin' time! Slam those old dinosaur greedy ass bastards.
  • blinkatron, on 04/04/2008, -1/+14Not only was this a great and logical decision by this judge... she's kinda cute to boot...
    • WraTH017, on 04/04/2008, -1/+14Her obvious rational thinking approach to law just makes her all the more attractive.
      • mbthompson, on 04/04/2008, -0/+5Glad I wasn't the only one who thought so (on both counts cuteness/logical approach being attractive).
    • vectorz, on 04/04/2008, -2/+1I'd hit it ;)
  • iamthearm, on 04/04/2008, -7/+1Oh I see. It was misreported that the judge supported the RIAA's argument. Sorry ladies and gents.
    • wire02, on 04/04/2008, -0/+6for the love of god...use reply
      • iamthearm, on 04/04/2008, -2/+0But then I wouldn't get buried. I look forward to getting buried.
  • aimhelix, on 04/04/2008, -8/+2***** teh RIAA!
  • theghoul, on 04/04/2008, -2/+49suing your customers = fail
    • ChayD, on 04/04/2008, -1/+2Apropos of this, I'm sure I read an article in one of the free papers yesterday about a major label (possibly EMI, I don't remember) who's decided not to go after P2Pers any more as they discovered fileshareing appears to be beneficial for them! They also mentioned something about the suing of customers being a bad idea.
      Similar article here (may already have run the gauntlet of Digg: http://www.theinquirer.net/gb/inquirer/news/2008/0 ...
    • Matt2k, on 04/04/2008, -0/+3They're not really customers if they're pirating your stuff.
      What exactly are you suggesting? Say I own a gas station. If I sell a slushie to one customer, then by your call he can come back and antagonize me in the future and I shouldn't call the police because he's a customer ?
    • unrealmp3, on 04/04/2008, -0/+1Somebody who download music without paying is not a customer. But downloading a DRM free version of restriction-crippled tunes is fair use IMO, but they don't understand that.
    • Sherman901, on 04/04/2008, -1/+2they aren't customers if they steal your *****. there's no way that any of these people would even buy all the music they download.
      • NewPunk, on 04/04/2008, -0/+2I refuse to buy a lot of music simply because of the RIAA suing their customers. I want to let them know that I'm still going to enjoy their music without paying them a cent until they stop this BS. I honestly have over 100 cds, but I haven't bought one in at least a year because of all this nonsense. I'd rather support the artists by going to their shows then buying their CD nowadays.

        Thank God I live in Canada where it's still not enforced like the imperialist government in the US.
  • Barbarino, on 04/04/2008, -1/+2What networks are these people using to get sued? I'm curious as to why anyone would run limewire these days.
    • bdbr, on 04/04/2008, -0/+3Usually Kazaa.
    • Sherman901, on 04/04/2008, -0/+2uh, not everyone is a pro when it comes to technology. i know lots of people that use limewire and p2p programs because they don't want to toy around with their settings to get bittorrent to work and/or don't even know what bittorrent is.
      • NewPunk, on 04/04/2008, -2/+1Well then it's their own fault for using Limewire and Kazaa... Haven't installed those programs in years... friggin n00bs using limewire... tsk tsk
  • ArachnidDude, on 04/04/2008, -1/+6Judge Gertner is hot. In a 1950's kinda way.
  • dudefather, on 04/04/2008, -3/+29***** the RIAA! SQUAWK! Polly want a cracker! ***** the MPAA! who's a pretty boy then?

    Agree with the sentiment, but get a new phrase, '***** the whatever' seems to be mostly a cheap way to get diggs (or 'crackers' if you prefer) and to make yourself look slightly bad ass on the internet
    • moocow1452, on 04/04/2008, -1/+2Screw the RIAA?
      Nuke the RIAA?
      Dismantle the RIAA?
      • bagelmaster, on 04/04/2008, -0/+2Dismantle works
      • Sherman901, on 04/04/2008, -0/+1i vote dismantle.

        and while we are at it, auction off their assets.
        • corvairkid, on 04/04/2008, -0/+0What's a good starting bid for a diamond encrusted 24K gold hot tub?
      • DaffyDuck, on 04/05/2008, -0/+1Destroy the RIAA.
    • endlessoul, on 04/04/2008, -0/+2What else are we going to say to increase the size of our e-penises?
      • subliminalurge, on 04/04/2008, -0/+2Perhaps the textual presentation of an actual intelligent thought?

        Just a suggestion.....
    • ChayD, on 04/04/2008, -0/+1mmmm...crackers.....
    • vidarino, on 04/04/2008, -1/+5The RIAA is good... FOR ME TO POOP ON!
    • bagelmaster, on 04/04/2008, -1/+1I hope one day not too far from now, people are saying "remember that organization that every used to want to *****? what was the name of it again? RI something or another... hmm"
    • TnTBass, on 04/04/2008, -1/+2No, saying "*****" on the internet never makes you look bad ass... regardless if you put RIAA after that word or not.

      The word has as much impact nowadays as "is" and that really depends on your definition of what "is" is.

      Although saying "***** the RIAA... SQUAWK!" definitely made me laugh.
  • tblaney6591, on 04/04/2008, -0/+17I think it's telling how the RIAA doesn't share their "winnings" with the artists they're supposedly representing. Just proves that they're not really legitimately interested in helping artists but are more like thugs who seem to think they own music and are going to take your lunch money no matter what. They shouldn't even be considered part of the music industry any more. They're more like a sub-set of the legal system.
    • caramelboogers, on 04/04/2008, -0/+0Any company has employees, and the output of those employees is the property of the company. Say you developed a piece of software for Google, do you deserve all the profits from that product? You where already paid for developing it.
      • tblaney6591, on 04/04/2008, -0/+2That doesn't make any sense. First, if I work for a company they provide all the material and resources for me to do my job. The RIAA doesn't provide the creativity, the instruments, or the studio time to make the music. Second, so they want to keep the winnings from the law suits. Ok. So they want this on top of the 95% of the profit they take on each cd sold. If they're going to keep all the winnings then they better pay the artists way more than $0.13/cd that they're getting now. Get real.

        • caramelboogers, on 04/05/2008, -1/+0First. they provide a lot. They provide all the money required to produce and release an album, including studio time, production of the cd's and so forth, marketing and all that. Artists have a choice to sign with a label or not, and most do because the labels provide all the resources they need. Now regarding the rate paid per CD up to negotiation between the artist and the label, and there are plenty of labels competing with each other for artists to sign with them. That rate is therefore set by the market.
    • tblaney6591, on 04/05/2008, -0/+1You're obviously an employee of the music industry. I stand by my original statement: the RIAA is now more a legal entity than a music development organization. And they will be non-existent in 10 years or less as the industry is already moving away from those type of middle men/leeches via the internet (eg., Radiohead, Trent Reznor). Arguing that the RIAA is good for the industry is like arguing that the insurance companies are good for health care - just a leech on the system which would carry on and and thrive without them.

  • Apocrypha, on 04/04/2008, -2/+2The article title and brief make no sense. Buried because of that.
  • MrWhite7, on 04/04/2008, -0/+4Horray for legal sense. It's a shame that this props up people's feelings that the record companies don't own the music they distribute and file sharing isn't piracy. If you break the law that's your own business, but acting like intellectual property rights don't exist is ludicrous and irresponsible.
    • caramba420, on 04/04/2008, -1/+1Maybe intellectual property rights shouldn't apply to music. The laws that govern us are archaic, and the status quo is being desperately clung to by people with a monetary interest in preventing change. To criminalize the vast majority of young people in our country is "ludicrous and irresponsible," as you so eloquently put it. Seriously, between underage drinking, smoking weed, and downloading music, how many people between the ages of 14-24 do you surmise are not technically criminals?

      P.S. Don't give me any nonsense about "IP encourages artists to make music," because I am a musician and play music every day. In our present climate, it's only the Britney Spears' that are getting paid, thanks to labels and their marketing practices. Anyone who signs a record deal is signing up for indentured servitude. The REAL musicians will continue to play music regardless of whether there is a paycheck in it for them. In fact, if all musicians stopped getting paid tomorrow, you can be pretty sure that a lot of really ***** music would disappear pretty quickly. All of the best musicians I know either have real jobs, or make their money by teaching or gigging anyway.
      • CountryGuy, on 04/05/2008, -0/+1If a musician signs up for "indentured servitude", isn't that their right?
        If a musician wants to sell their song, isn't that their right?
        Why should music be any different than eggs at the store, a car, or electricity? Saying it should be free is just trying to legitimize theft - I imagine the same argument applies to movies now as well?
        As for the comment about ***** music... If your artistic values can't accept that there are different strokes for different folks (although I think Britney sucks as well), then I don't know how you can call yourself a musician.
      • MrWhite7, on 04/05/2008, -0/+2The archaic laws you refer to are actually the product of thousands of years of social evolution. They are constantly evolving, constantly changing. I'm fine with civil disobediance. If you want to express your distates for the current track intellectual property takes with music, that's your perogative. I take issue with the notion that many people latch onto that because 'they' disagree with how society actually functions then what 'they' are doing is legal, just and sound. As for the criminalization of drugs et al, I share your opinions of the situation, however, I'm intelligent enough to know that lumping them together as some sort "this is how the man wants it and I know it's all wrong" fight is counter-productive and dishonest. Argue each on its own merits and don't cram it into something to which it's tenusously related, at best, just to try and bolster your unfounded point.
  • AndrewMB, on 04/04/2008, -1/+3Damn RIAA!!!! Down with ye evil basTards!
  • ChristBehemoth, on 04/04/2008, -3/+2***** the RIAA!!
  • oneredeye, on 04/04/2008, -2/+8Under that argument ThePirateBay.org is untouchable! Their servers neither "make available" nor even transmit copyrighted materials.
    • bagelmaster, on 04/04/2008, -0/+4Too bad TPB operates out of Sweden and this ruling was in the US
      • ileftfark, on 04/04/2008, -0/+2Haven't you heard? They moved all their servers to Egypt! ;)
    • Matt2k, on 04/04/2008, -0/+1> Under that argument ThePirateBay.org is untouchable!

      Nooo. Did you read the article? The judge said making available is not the same as copyright infringement, but they explicitly went on to mention that there was still a clear-cut claim for copyright infringement based on a preponderance of evidence. I mean, it said this *the very next paragraph*.

      So just because I stick some of my music on my FTP server so I can access it later, and thus am making it available, that doesn't automatically mean I'm out to violate copyright. But if I'm offering it on a P2P network then there's a pretty goddamned good chance I am.
  • ChayD, on 04/04/2008, -4/+5Don't music stores "Make Available"? There's nothing stopping someone from shoplifting CDs if they felt so inclined. Silly RIAA. I remember a time when the RIAA used to do useful technical stuff, not frivolous crap like this.
    • drmangrum, on 04/04/2008, -0/+5Bad analogy. The music stores paid for the music and have contracts that allow them to resell. By shoplifting, your stealing from the music store, not the RIAA. Your really hurting the music store as the Big Music Labels have already made their profit from that CD. The store will still have to reorder to restock their shelves.
    • Matt2k, on 04/04/2008, -0/+2> Don't music stores "Make Available"?

      Only on Digg would something like this get modded up.
    • bdbr, on 04/04/2008, -0/+1A better analogy would be if you made copies of a copyrighted CD and stood on a corner handing them out. If no one took any, did any copyright infringement really take place?
    • earthforce1, on 04/04/2008, -0/+1Music stores - what about radio stations? If anybody "makes music available" it is them. How is broadcasting DRM free music over the airwaves different from sharing it on a network?

  • Scira, on 04/04/2008, -0/+1Arr Aye Eh? Eh!
  • Kurlumbenus, on 04/04/2008, -1/+1EFF the RIAA!
  • dupswapdrop, on 04/04/2008, -0/+2Hey I just record my music off the radio just like I did in the old days. Now is the RIAA going to sue the radio stations for making songs available? Are the radio stations going to have to provide lists of people who listen to their stations?
    • caramelboogers, on 04/04/2008, -3/+0They have agreements with radio stations, allowing them to only play certain songs and require them to play them a certain amount of times. The purpose of radio is to have people discover new music. The only purpose of TPB is for people to steal the music.
      • dupswapdrop, on 04/05/2008, -0/+1"making song available over a network constitutes copyright infringement" is not radio a form of a network? I bet some good lawyer could make a whole lot of money pointing out some of the holes in this line of reasoning.
  • YodaJones, on 04/04/2008, -0/+2Me likum Judge Nancy....
  • juniorb, on 04/04/2008, -0/+1"Earlier this week, a decision by the judge presiding over Elektra v. Barker was widely misreported as providing substantial support for the argument that making a song available over a P2P network constitutes copyright infringement. Another decision rendered the same day and just brought to light by the EFF actually *DOES* come to that conclusion, and the judge in that case has quashed a subpoena issued by the RIAA to learn the identities of four anonymous Boston University students."

    But the EFF report actually *DOES NOT* come to that conclusion. It comes to the opposite conclusion, that "making available" is NOT copyright infringement. Is this a typo, or am I misunderstanding the article??
    • bdbr, on 04/04/2008, -0/+1There are two separate issues here:
      1. "Offer to distribute", which both cases have confirmed is adequate grounds for a complaint.
      2. Actual distribution - this is where the infringement must occur, and its very hard to prove.
  • wexmajor, on 04/04/2008, -0/+1Wait what? Wouldn't that make filesharing not even illegal anymore? What's going on?
  • kurtwinter, on 04/04/2008, -0/+2Fair Use FTW! Copyrights can only be infringed when they are used for commercial gain. With that very simple precept in mind, it forces the recording industry to innovate if it wants to compete. If record companies want to compete, they should do smart things, like selling catalogs of bands' works on DVD with lossless, multichannel and 128k MP3 on the disc, so that the music can be enjoyed in a variety of ways.
    Here's an interesting analog, did the publishing of the concise New Yorker on DVD diminish the value of the collected issues? The print media world is much like the music industry, but without the attack dog. They are facing hard times, but are changing business models and offering the consumer something new. When the shakeout is finished, the industry will be stronger for it.
  • LeePeyton, on 04/04/2008, -0/+1Artist hate the RIAA, everyone hates them. Why don't they just give up?
    Everyone just have open Wi-Fi networks. The ultimate ***** off to the RIAA.
    http://www.tomrafteryit.net/how-to-beat-the-riaa/
    • sfacets, on 04/04/2008, -0/+1It would also kill of the telecommunication corporations
  • bdbr, on 04/04/2008, -0/+1I think the key to this ruling is that the case was thrown out. If it was just filed as a motion in the case and the case wasn't dismissed, the RIAA could just withdraw and there wouldn't be any legal precedence.

    This means the RIAA can still file complaints based on an "offer to distribute", but they'll have to prove actual infringement (distribution of files to someone other than the investigator) to win...which would be very difficult.
  • kd1s, on 04/04/2008, -0/+1Little by little the RIAA infringement cases are being shot to hell. It'll be good to see them put down like the rabid dog that they are.
  • designerutah, on 04/04/2008, -0/+0What we need is a rational solution. In the case of scarcity of resources, it makes sense to have a strong copyright protection, and thus, a significant copyright licensing fee. But in the digital environment, where copying uses virtually no resources, and therefore doesn't affect the scarcity of the resource, the licensing fee should be minimal, and thus reflect it's actual value. For a Van Goght painting, doing an excellent copy is a time intensive labor, and decreases the scarcity of the original, thus value is reduced from the original. The less quality the copy (i.e., just a color photocopy, rather than a painted copy) does less damage to this scarcity. In terms of electronic copies, where the copies can be perfect, but don't really change the scarcity (infinite plus one is still infinite) then the loss of value done by copying is tiny. Make sense?
  • bincoder, on 04/04/2008, -0/+1So now I can't sue the riaa when it shares fakes? Darn, there goes my retirement nestegg! XXOO to the judge. :)
  • flintmecha, on 04/04/2008, -1/+1I think that judge is pretty hot.
  • Niteryder, on 04/04/2008, -0/+0If I did not download it onto my disk than I am not in material possession, I can go on any P2P network and not commit any crime, since P2P is not criminal. I research network architectures and that also is not a crime and certainly not a crime if I move my own files via a P2P network from one P2P network to another, since the end recipient is also me.

    Hence RIAA has no argument. If media century were to intercept my private files that would be a crime, since they are not the intended recipient of my data since it never left my possession from one of my P2P networks to the other P2P network also mine. That constitutes hijacking and cracking my network fabric and wrongfully removing data and then attempting to use that to make fraudulent claims in a court of law based on the assumption that I stole my own data
  • AvangionQ, on 04/04/2008, -0/+2""Merely because the defendant has 'completed all the steps necessary for distribution' does not necessarily mean that a distribution has actually occurred," wrote Judge Nancy Gertner in her order. "As noted above, merely exposing music files to the Internet is not copyright infringement."" ... flawless interpretation of the law -- but I wish that a Judge would say something along the lines of `lawsuits cannot repair an antiquated business model` ...
  •  

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