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Mr Luzcious · 08-20-2007, 11:13 PM

http://arstechnica.com/news.ars/post...ndermined.html

Foundation on which RIAA builds cases in danger of being undermined

By Eric Bangeman | Published: August 20, 2007 - 11:40PM CT

At the base of every one of the over 25,000 lawsuits filed by the RIAA against suspected file-sharing is a single argument: making a song available over a P2P network like KaZaA infringes on the copyrights of the record labels. That assertion will be tested by Warner v. Cassin next month, as her attorney, Ray Beckerman, will argue the matter in a federal court in White Plains, NY.
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Although the RIAA's claim that making a song available over a P2P network infringes on a record label's copyrights may seem sound at first glance, the issue is as not cut and dried as the music industry would lead us to believe. First, the RIAA has not established that any infringement has actually taken place. The RIAA's claims of copyright infringement come after its investigator, MediaSentry, discovers music in a P2P user's shared folder. MediaSentry then takes screenshots, notes the IP address, and the litigation process is set into motion. That's the sole basis for the RIAA's complaints.

A number of defendants have pointed out the weakness of the RIAA's argument. First, the RIAA's complaints do not allege any actual acts of infringement, which the Copyright Act says must take place in order for a case for infringement to be made. The only downloading that the RIAA can actually prove occurred was done by its authorized agent, MediaSentry. Since the RIAA cannot demonstrate that someone other than MediaSentry downloaded the file—or that the defendant ever illegally downloaded any of the tracks in the shared folder—it therefore cannot show that infringement actually took place. Looking at it from another angle, there are no allegations that the defendants actually engaged in a specific act of distribution at any point in time—which is why the RIAA's boilerplate complaints refer to "ongoing" and "continuous" infringement.

Or, as Beckerman notes in his motion, "the complaint fails to set forth... any instance or example of 'downloading' a recording; any instance or example of 'distributing' a recording; any instance or example of 'making [a recording] available';... or what law would support a claim for 'making [a recording] available.'"

Beckerman also argues that if making available is found to be the same as distributing, it could have broader implications than just sharing files over a P2P network. "Under such an elastic interpretation and ill-defined standards, almost all participants in the Internet would become vulnerable to accusations that they 'make available' a variety of content, including copyrighted materials, to users," he argues in the reply. Think about hyperlinks, which make available other content on the Internet. Providing a hyperlink could be construed as distribution under the RIAA's definition, argues Beckerman.

There have been seven cases in which the making available argument has been tested. In six of those, including Elektra v. Perez, the judge allowed the cases to proceed. In each of those six cases, the judges did not actually rule on the issue of whether making a file available is the same as distribution. Instead, the judges said that the cases could go ahead based on the allegations of continuing infringement. The judge presiding over the seventh case, Elektra v. Barker, has yet to issue a decision but has promised to rule on the making available argument.

The rulings in Elektra v. Cassin and Elektra v. Barker could change the legal landscape for both the RIAA and defendants if the judges hold that making a file available on KaZaA or any other P2P network does not constitute copyright infringement. In fact, it would all but certainly kill the RIAA's current litigation model. The labels would have to show actual evidence that someone downloaded a file from a targeted P2P user instead of just offering a few screenshots and a report from MediaSentry along with a boilerplate complaint.

08-20-2007, 11:13 PM	Topic Starter
Mr Luzcious Orbital Teapot Join Date: Jun 2007 Location: a maze of pleasure Casino cash: $10008797	More RIAA news.. http://arstechnica.com/news.ars/post...ndermined.html Foundation on which RIAA builds cases in danger of being undermined By Eric Bangeman \| Published: August 20, 2007 - 11:40PM CT At the base of every one of the over 25,000 lawsuits filed by the RIAA against suspected file-sharing is a single argument: making a song available over a P2P network like KaZaA infringes on the copyrights of the record labels. That assertion will be tested by Warner v. Cassin next month, as her attorney, Ray Beckerman, will argue the matter in a federal court in White Plains, NY. Related Stories Although the RIAA's claim that making a song available over a P2P network infringes on a record label's copyrights may seem sound at first glance, the issue is as not cut and dried as the music industry would lead us to believe. First, the RIAA has not established that any infringement has actually taken place. The RIAA's claims of copyright infringement come after its investigator, MediaSentry, discovers music in a P2P user's shared folder. MediaSentry then takes screenshots, notes the IP address, and the litigation process is set into motion. That's the sole basis for the RIAA's complaints. A number of defendants have pointed out the weakness of the RIAA's argument. First, the RIAA's complaints do not allege any actual acts of infringement, which the Copyright Act says must take place in order for a case for infringement to be made. The only downloading that the RIAA can actually prove occurred was done by its authorized agent, MediaSentry. Since the RIAA cannot demonstrate that someone other than MediaSentry downloaded the file—or that the defendant ever illegally downloaded any of the tracks in the shared folder—it therefore cannot show that infringement actually took place. Looking at it from another angle, there are no allegations that the defendants actually engaged in a specific act of distribution at any point in time—which is why the RIAA's boilerplate complaints refer to "ongoing" and "continuous" infringement. Or, as Beckerman notes in his motion, "the complaint fails to set forth... any instance or example of 'downloading' a recording; any instance or example of 'distributing' a recording; any instance or example of 'making [a recording] available';... or what law would support a claim for 'making [a recording] available.'" Beckerman also argues that if making available is found to be the same as distributing, it could have broader implications than just sharing files over a P2P network. "Under such an elastic interpretation and ill-defined standards, almost all participants in the Internet would become vulnerable to accusations that they 'make available' a variety of content, including copyrighted materials, to users," he argues in the reply. Think about hyperlinks, which make available other content on the Internet. Providing a hyperlink could be construed as distribution under the RIAA's definition, argues Beckerman. There have been seven cases in which the making available argument has been tested. In six of those, including Elektra v. Perez, the judge allowed the cases to proceed. In each of those six cases, the judges did not actually rule on the issue of whether making a file available is the same as distribution. Instead, the judges said that the cases could go ahead based on the allegations of continuing infringement. The judge presiding over the seventh case, Elektra v. Barker, has yet to issue a decision but has promised to rule on the making available argument. The rulings in Elektra v. Cassin and Elektra v. Barker could change the legal landscape for both the RIAA and defendants if the judges hold that making a file available on KaZaA or any other P2P network does not constitute copyright infringement. In fact, it would all but certainly kill the RIAA's current litigation model. The labels would have to show actual evidence that someone downloaded a file from a targeted P2P user instead of just offering a few screenshots and a report from MediaSentry along with a boilerplate complaint.
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