RSS'Making available' theory takes center stage in RIAA v. Thomas
By Ed Oswald | Published June 23, 2008, 5:09 PM
After the judge in the Jammie Thomas trial admits he may have made some serious mistakes, the organization helping to defend her in court is now seeking a retrial.
A hearing on the subject is scheduled for August, where the two sides will argue for and against throwing out the October verdict that found Thomas guilty and fined her $220,000.
The whole idea of the 'making available' defense is this: A defendant in an illicit file-sharing case is essentially found guilty of infringement by just making the files available for download. Oftentimes, there is no evidence that actual downloading by other users occurred.
That concept has drawn heavy criticism. Earlier this month, the Recording Industry Association of America backed away from its case against Joan Cassin, a New York resident who was sued after MediaSentry discovered she was sharing 406 copyright-protected files over the Kazaa network.
No evidence of actual downloading by other Kazaa users was apparently offered. This followed an April ruling by an Arizona district court judge, reversing his own previous ruling and claiming that evidence of actual dissemination was necessary in order to convict a defendant on infringement charges.
With this case history, lawyers for the Electronic Frontier Foundation seem to have been buoyed by these developments, using the same general argument in a brief filed with a Minnesota District Court on Friday.
The EFF argues that the Copyright Act does not permit a suit on the basis of attempted copyright infringement alone. Instead, the onus is on the plaintiff to produce evidence that piracy actually occurred.
Judge Michael Davis actually began the effort to consider a new trial himself, saying in May that he may have made what he termed as a "manual error of law" in instructing the jury on how to decide the case.
While his original instructions told the jury that merely making files available did not constitute infringement, RIAA lawyers argued the opposite. Davis acquiesced and changed that part of the draft.
"If the RIAA wants to continue with its mass litigation campaign, it's going to have to invest the time and resources to actually prove those cases -- if it can -- by showing that infringement actually occurred," EFF attorney Corynne McSherry said.
The entertainment industry disagrees. The MPAA filed a brief in support of the RIAA, arguing that the jury instruction should stand as it was edited, and said a change could hurt the industry's attempts to curb piracy.
"Mandating [proof of transfer] could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement," the MPAA brief reads. "MPAA urges the court to oppose any requirement of actual distribution because the Copyright Act imposes no such requirement."
Thomas Sydnor of the Progress and Freedom Foundation seemed to support that argument in a separate brief, arguing further that the Copyright Act was intended to be flexible and technology-neutral, as its writers couldn't have possibly imagined the new ways of distribution that now exist, and courts and copyright holders must adapt to.
Either way, it now appears that the chances of Thomas getting a new trial, which she first requested in October of last year, may be increasing.
It´s funny everyday it seems that riaa and mpaa are closer to an end. To good to be true i wonder....
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I dont think they are going to end, I honestly don't want them too either, even with their bad business policies and poor treatment of their customer base. But the are Finally starting to come to the reality that THEY have to evolve their business. Suing their customer base for everyday common consumer rights practices just pisses them off and losses them any potential customers in the future. If they want to remain a viable business at all. Otherwise Artists will be doing more and more self label direct to internet marketing on their own and cutting out the middle man.
Personally Some of the best stuff I have attained lately have been from DRM free online stores and distributions direct from the artists web pages... Its the wave of things to come IMHO, and the artist are seeing much more of the profit in this way as well...
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Like I said, all the MPAA RIAA has to do is pull an IP number out of a hat. ANY hat, for any reason. Fits a demographic, Makes a good target cause they are outspoken against their practices, will make press(IE Universities), Has no influence or money to fight them in open court (again who is poorer then students and retirees?). yadda yadda yadda, and bingo your a Pirate and in court. Unless you pay their extortion to let you off the hook I mean. Tantamount to racketeering protection money if you ask me.
In other words they have and never had ANY evidence at all in these cases. All they do is say someone on this IP (they do not even attain a MAC address of the machine in question) that was registered to you between these times May have allowed a file to be available to download, but we don't know that anyone got anything from that address, just that it may have been possible to attain it at that specific window of time. They know it, we know it, and Finally the Judges are starting to understand this as well. The RIAA MPAAs entire campaign is based on NOTHING but their say so. Thats it. Nothing else. And they have enough money and power to roll over just about anyone even when the real victim is found not guilty... The industry appeals and appeals until they get the verdict they want, or the other side runs out of money and takes the deal to be able to go on with their lives.
And mediasentry is a joke in the courts now, with their anti privacy tactics and entrapment schemes. Now the so called IPs they bring into question are not viable either as they can not even prove that THAT IP provided a copyrighted file to even them. All they can show is that it might have been available to others to get, but they often can not show that they could get it themselves. So in my mind, its doubtful that it was out there for others to attain either. Least thats how I would state it on a jury.
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I heard an argument about this yesterday. Where the differences between criminal and civil cases are that in criminal cases there is a requirement for proof beyond reasonable doubt and in civil cases(what lawsuits are considered) all you need to win is to make the jury THINK they did it.
It also mentioned, the RIAA complaining that the requirement should not be inacted because its to hard and expensive to prove it. So why cant they just keep on doing as they have been doing.
Aww poor billionaires.. To hard is it.. boo hoo hoo..
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Actually the correct wording in a Civil Trial is "preponderance of evidence" so even in a Civil trial there is a need to prove. The only difference is the bar is lower.
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The only difference is the bar is lower.
...and there is no "guilty/innocent" verdict. Just "liable" or "not liable".
...and that no criminal record is created/altered based on the outcome of a civil trial.
;)
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Errr ... "innocent"??? Isn't it "not guilty"?
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You are correct.
My bad.
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"Practical Remedy" == ask for lots of money and threaten lawsuits that the average person can't afford to fight. I am not in favor of piracy in general, but the *AA tactics have been pretty reprehensible by not even requiring a reasonable level of proof before demanding that money be coughed up.
Of course, staying off the P2P networks to trade music and movies would be a smart move to start with for the average person. BitTorrent does have legal uses, but all people really hear about for the most part are the media-sharing uses. (Kind of like the publicity over Napster - never heard of it before the lawsuits, but how many tried it once it became public knowledge?)
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Napster was nice before it went popular... back in 1999 I was using most of a T1 on Napster. Then the university decided that they actually wanted to limit bandwidth and... blah. :( Ah well.
Then Hotline (anyone else remember Big Red H?), then (original) Gnutella were the options of choice... *sentimental sigh*
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