No Surprise Here: PFF Blasts Jammie Thomas Judge For His Mistrial Call

from the shocking dept

We've written plenty of times about the so-called "think tank" the Progress & Freedom Foundation. The group, which has called itself a "free market" think tank appears to be anything but free market when it comes to intellectual property issues. For years, it's been a huge supporter of increasingly strengthening gov't granted monopolies, often resorting to highly questionable arguments, such as suggesting that fair use harms innovation and that the DMCA shouldn't be changed because that would be gov't meddling in the free market -- ignoring, of course, that the DMCA itself is actually meddling in the free market. For years, the face of PFF's twisted claims on copyright was Patrick Ross, who then moved on to become a lobbyist for the entertainment industry (basically cementing what he was already doing at PFF with a more direct relationship). We thought it would be difficult to find someone who could twist arguments quite as much as Ross did, but PFF surprised us and went one step further.

It hired Tom Sydnor, who made quite a splash by writing one of the most ridiculous attack dog papers we've seen, taking a bunch of Larry Lessig comments completely out of context to accuse him of being a communist sympathizer. It was pure McCarthyism. The worst was when a variety of others pointed out Sydnor's out of context comments and put them back in context -- and Sydnor still stood by the paper, refusing to admit he took a single comment out of context. The truth was that it was difficult to find a single comment that was accurately portrayed.

Based on this, I tend to be immediately extra skeptical of anything that comes out of PFF (Adam Thierer's work is usually good, but that seems the exception). Sydnor's latest is an attack on the judge in the Jammie Thomas trial for declaring a mistrial in her case for wrongly instructing the jury that simply making a file available should be considered infringement. As the judge realized (correctly, in our opinion, and the opinion of plenty of legal experts) this was a "manifest error of law." For copyright infringement to occur a copy needs to be made. Simply making something available is not making an infringing copy. In typical Sydnor fashion, not only does he claim that the judge was wrong, he makes the judge out to be totally off the reservation in making such a ruling, claiming that the judge "misread or disobeyed precedents, federal treaties, scholarly reviews and the three branches of government."

Sydnor, of course, conveniently ignores pretty much everything on the other side, including precedents, scholarly reviews and the three branches of government (not international treaties for the most part, since the relevant ones have all been written by the legacy industry -- so indeed, they agree with Sydnor's assessment, but that's hardly compelling). The fact is that there have been folks who have weighed in on both sides, and there have been widespread legal rulings on both sides of the "making available" issue, as well as scholarly reviews. In fact, William Patry, a much more widely recognized and respected copyright expert than Sydnor, has written extensively on the issue, and seems to disagree with what Sydnor repeatedly claims is "inarguable."

More importantly, the recent trend has been quite clear: most of the courts recently taking up the issue have realized how little sense it is to accuse someone of copyright infringement when no copy has been shown to have been made. There are some exceptions, certainly, but most of the cases these days seem to be going against Sydnor's interpretation, which hardly makes it "inarguable" or as crazy as the paper makes out. Sydnor's decision to take some comments out of context, and then ignore the weight of the arguments on the other side, in order to paint the judge in this case as some sort of clueless rogue, is, tragically, fitting with PFF's reputation for throwing truth, reason and logic out the window in order to support the entertainment industry's position at all costs.

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Judge Reject's Woman's Request For A Jury Trial; Orders Her To Pay RIAA

from the vexatious-indeed dept

Ignoring numerous other court rulings concerning whether or not "making available" is copyright infringement, a judge has rejected a woman's request for a jury trial in her file sharing lawsuit, and ordered her to pay the $7,400 fine already set. This was the case we had just discussed last week, where the woman claimed that the RIAA only had evidence that she had shared six songs, even though she admitted to making 37 songs available. There was already an agreement in place that the fine would be $200/song, so the real question was whether it should be $7,400 or $1,200. The woman argued that, in light of the Jammie Thomas mistrial and other rulings, the RIAA needed to show actual infringement, rather than just that the files were made available. Unfortunately, this judge rejected that argument and ordered her to pay the full $7,400.

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RIAA Appeals Mistrial Ruling In The Jammie Thomas Trial

from the i-object! dept

The RIAA seems so positively offended that its "making available" theory keeps getting rejected by courts that it's willing to object to just about anything. As you probably know, the RIAA's only "win" in a full trial was declared a mistrial, after the judge realized he had made a "manifest error of law" in incorrectly instructing the jury that simply making a file available in a shared folder was the equivalent of "distribution" under copyright law. The judge then ordered a new trial.

It probably shouldn't come as a surprise that the RIAA is appealing this decision, asking an appeals court to overturn the mistrial ruling and let the original ruling stand. While it may not be a surprise that the RIAA would be upset at the ruling, filing an appeal on a mistrial ruling is highly unusual. Normally, appeals are focused on actual rulings, not a decision that a trial was a mistrial. It seems like a long shot that the appeals court would agree to review the mistrial ruling.

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Judge Declares Mistrial In RIAA's Only Court Victory

from the jammie-thomas-gets-a-second-chance dept

The RIAA's only court victory in its years-long legal battle against individuals who engage in unauthorized file sharing has been declared a mistrial, and the $222,000 fine against Jammie Thomas has been thrown out. Jammie Thomas may now face a new trial, but this time, the jury will be instructed that the record labels need to have shown actual infringement -- and that simply making files available is not infringement. This is a pretty huge loss for the RIAA, who had been running around like crazy using the Thomas verdict to (a) claim that the courts recognize that "making available" is infringement and (b) that this case somehow proves that file sharers will get huge fines. Yet, now the RIAA is back to having no actual court victories against file sharers, and its "making available = infringement" argument is once again rejected.

Perhaps equally as interesting, in declaring the mistrial, Judge Davis also called upon Congress to change the ridiculous fines that can be levied on file sharers, noting that they seem to be way, way out of proportion to the seriousness of the act:

The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court. . . . While the Court does not discount Plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs.

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Judge In Jammie Thomas Trial Seems Likely To Declare A Mistrial

from the appeals-on-the-way dept

In the ongoing saga of the Jammie Thomas trial, where the RIAA tried to get its first serious victory in court against an alleged file sharer, things may be looking a bit grim for the RIAA's argument. While it initially gloated after winning the case, the judge later admitted that he may have made a "manifest error of law" in saying that the RIAA did not need to prove actual infringement -- but that showing Thomas had "made available" content was good enough. While both the MPAA and the RIAA tried to explain why actual proof of infringement shouldn't be necessary because it's just too difficult (the gist of their arguments), it appears that the judge is not at all persuaded by their arguments and seems quite likely to declare a mistrial.

In the hearing today, the RIAA's lawyer basically argued the same point: that because it's too difficult to obtain evidence, evidence shouldn't be necessary. The judge responded by pointing out that if Congress really intended for that to be the case, then it would have written the law to make it clear that "making available" was infringement. Since it did not, it seemed likely that Congress did not intend for the law to be read as the RIAA wants it to be read (have no fear, of course, because as we speak you can rest assured that RIAA/MPAA lobbyists are working to get the law changed on this point).

Of course, whoever loses this ruling will appeal, this case is far from over. It will go through a series of appeals to determine whether or not the whole "making available" aspect is distribution, and then even after that's settled there are numerous other points that Thomas is likely to appeal (assuming the case is still going). What I don't understand is why Thomas and her lawyer haven't also appealed over the fact that the RIAA later admitted that a key witness lied on the stand concerning a key point over the legality of making personal copies of music you bought. That would seem to also be an important point.

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If You Block Your P2P App From Sharing Files, Are You Still Guilty Of Making Files Available?

from the it's-going-to-need-to-in-this-case dept

Contrary to popular opinion (partly due to a misunderstanding press that will often repeat this myth), the various lawsuits regarding file sharing have never been about an individual downloading unauthorized copyright-covered works, but in uploading or sharing them. Amusingly, there are some legal experts who point out that a clear reading of copyright law in the US actually suggests that uploading is perfectly legal, while downloading may not be. Either way, the entertainment industry has focused on going after people for uploading (specifically: distributing) unauthorized materials. And that has resulted in an ongoing legal debate over the question of whether or not simply making something available is the equivalent of distribution under the law. There have been a few court rulings on either side of this question, but the trend seems to be leaning towards the fact that making available is not the equivalent of distributions. That would be a problem for the recording industry, as it would then need to prove actual unauthorized distribution, which could be quite difficult.

That said, in one case, it may be facing an even bigger uphill battle. That's because it charged someone with distributing/uploading content, despite the fact that he'd modded his file sharing software to not allow any uploads. It's difficult to see how they can get him for even "making available" given that he set up the software in a way to not actually make anything available at all. But, of course, given how much the entertainment industry relies on flimsy evidence, it's probably no surprise that it didn't even check to see if this guy was making any files available before charging him with doing so.

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RIAA Also Tells Judge That Proof Shouldn't Be Necessary To Sue For Infringement

from the heard-this-before dept

Following in the footsteps of the MPAA, the RIAA has now filed its response in the Jammie Thomas case, claiming again that actual proof of distribution doesn't make sense: "Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online." See, there's just one problem with this. The law isn't designed to make it easy to enforce copyright owners rights. It's designed to make sure that only the guilty party is actually blamed for breaking the law. So the fact that it's "difficult" shouldn't sway the judge.

Furthermore, while the discussion here was supposed to focus on whether or not "making available" is infringement, it looks like the RIAA decided to pull in a bunch of other arguments as well, noting that Thomas downloaded many of the songs in her folder (yet, the case was about uploading, not downloading), and that none of it matters because the RIAA actually does have proof of distribution (in the form of Media Sentry downloading the files). Again, though, those points are not what's up for debate here. So, once again, we have the RIAA trying to cloud the issue. Oh yeah, and, of course, the RIAA can't resist using its bogus arguments that international treaties require US courts to treat making available as distribution. That's an incredibly weak argument, based on the idea that these treaties, often written by the industry, and approved by diplomats who don't understand what they really mean, should be binding over what the law actually says.

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MPAA Explains Why Proof Shouldn't Be Necessary In Copyright Infringement Cases

from the who-needs-evidence? dept

The entertainment industry has been pushing for courts to rule that simply "making available" content for file sharing is the equivalent of copyright infringement. There's a big problem with this, however. Copyright covers a few different things, and the key ones under which most people are charged is unauthorized "distribution." But, if there's no evidence that a file was actually shared, it's difficult to see how distribution actually occurred. Basically, those who say making available isn't distribution are simply saying that for someone to be charged with unauthorized distribution there should at least be proof that distribution occurred. In most (though not all) cases, the judges have seen this and ruled that simply "making available" is not distribution.

In the one high profile case that a judge ruled otherwise, the infamous Jammie Thomas case, the judge has now admitted that he may have made a "manifest error of law" and has asked parties to file briefs to give their thoughts on the making available issue. The MPAA has taken the opportunity to basically say that it's too difficult to find actual proof, and therefore they shouldn't have to do so:

"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.... It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement."

In other words, since it's difficult to get proof, we shouldn't have to provide proof. This is especially problematic given how flimsy the "proof" that the entertainment industry already relies on.

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RIAA Goes Judge Shopping After One Judge Actually Pushes Back

from the sneaky,-sneaky,-sneaky dept

The RIAA has been known to pull all sorts of tricks over the years to get what it wants, but this latest one may be the most sneaky of all. Last week, Ray Beckermann was notified that the RIAA was dropping one of the cases it had filed against one of his clients, Warner v. Cassin. In that case, a judge had been reviewing a dismissal motion, and appeared to find Beckermann's argument that "making available isn't distribution" compelling. So, perhaps it wasn't a huge surprise that the RIAA dropped the case before they lost it. But, then, a day later, Beckermann discovered that the RIAA had refiled the identical case in the same court, but rather than using the defendant's name, Cassin, it had filed it under a John Doe complaint, as if they didn't know who the defendant was. As such, the case got handed to a new judge. Basically, it appears that the RIAA didn't like where one judge was heading with the case, so got it dismissed and immediately refiled the case (potentially under false pretenses) and had it handed to another judge. Beckermann, of course, has made all of this clear to both judges -- but it seems incredibly sneaky that the RIAA would even think to go that far. Hopefully the court recognizes this judge shopping for what it is.

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Bad Day For The RIAA: Two High Profile Cases Go Against RIAA

from the judges-getting-things-right dept

Well, well, well. The RIAA is not having a particularly good week. In the Tanya Andersen case (where the RIAA sued an innocent person), the court has awarded Andersen $108,000 in legal fees from the RIAA. You may recall that the RIAA had protested having to pay legal fees, which the judge smacked down. Note that this is entirely separate from Andersen's racketeering case against the RIAA.

However, the much bigger news concerns the infamous Jammie Thomas case. As you'll recall, the RIAA won that case, even though it now admits that it said false things under oath. Much of that decision hinged on the fact that the court said that "making available" was infringement, which is the opposite of what many other courts have been saying. In fact, it turns out that it went against the binding precedent in a different case within the same circuit. The judge has now admitted that he may have committed a "manifest error of law" in his jury instructions, and it sounds like he's going to order a new trial.

This is a big deal. The RIAA has been holding up the Thomas case over and over again as proof that (a) "making available" is infringement and (b) that courts will award huge fines for those caught file sharing. If that decision gets tossed out (not even by an appeals court, but by the judge who ruled in the first place), it will suddenly make the RIAA's claims relating to that case disappear completely.

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IP Lawyer Explains Why Uploading Files May Not Be Distribution For Copyright

from the forget-making-available... dept

While there's been a big ongoing discussion in various courtrooms concerning the question of whether or not making unauthorized files available for download is copyright infringement, there's another interpretation of copyright law that many copyright scholars agree with -- but which the RIAA and the MPAA would certainly prefer you not hear. I'm at the San Francisco MusicTech Summit and on an early (and not particularly well attended) session in the morning, intellectual property lawyer Andrew Bridges made a fascinating argument: that if you follow the actual text of existing US copyright law, uploading unauthorized content does not infringe the distribution rights of copyright. This goes even beyond the whole "making available" question, by saying even the uploading doesn't violate the law directly.

The reasoning requires a very literal reading of the law. Section 106 of copyright law lists out the specific "exclusive rights" granted under copyright law to copyright holders, including things like reproduction rights, performance rights and distribution rights. The text of the distribution right is: "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;" From this reading, one might conclude that uploading a file is a "copy." But if you go to Section 101, which holds the definitions for the law, it states (quite clearly):

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

Note the emphasis on material objects. As such, you can read the law, as written, to conclude that passing around the song itself, which is not a material object, is not actually an infringement of the distribution right under the current law.

Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it. He says he'll continue to make the argument, but that it has not been effective. Also, as Bridges noted in making the original statement, just because the distribution right isn't infringed, doesn't mean there aren't other issues. For example, whoever downloaded the file downloaded it to a material object (the hard drive) probably violates the first exclusive right, the "reproduction" right. And, thus, an argument could be made that the person who uploaded the file contributed to the violation of the reproduction right. However, based on this argument, it does seem clear that uploading a file is not, technically, a violation of the distribution right under copyright law -- not that the courts recognize that. Of course, if the courts ever did recognize this fact, you could bet that within a matter of days, a Congressional Representative would introduce an amendment to copyright law to change the definition of "copy" to include content not tied to a material good.

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Court Rejects RIAA's 'Making Available' Theory In Infamous Howell Case

from the good-decisions dept

The lawsuit of Atlantic v. Howell got a ton of attention late last year when some folks, including the Washington Post, misinterpreted an RIAA filing to suggest that the RIAA had claimed that merely ripping your CD to your computer was file sharing. While the RIAA may actually believe that (and has made other statements to that effect), the filing in this case did not say that at all. Instead, it clearly stated that it was the combination of ripping the CD and putting the music into a shared folder that made the songs no longer "authorized." It was simply yet another version of the RIAA's theory that "making available" is the equivalent of distribution for copyright purposes. Still, based on this theory, the RIAA asked for summary judgment against Howell. The court has now come out with a detailed and well reasoned decision completely rejecting the RIAA's "making available" theory, highlighting why it does not appear to be supported by copyright law. It's worth reading if you're interested in this stuff. Either way, the RIAA isn't getting its summary judgment, and the case will proceed later this year.

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Did A Court Really Reject 'Making Available'? Sorta, But Not Quite...

from the not-quite... dept

Well, try to sort this one out. Slashdot, News.com and Ray Beckerman are all saying that the court in the Elektra vs. Barker case have dealt the RIAA a "setback" by rejecting the "make available" theory of copyright infringement. That sounds good, right? But hold on. The EFF (who filed an amicus brief against the "making available" claim), Billboard and ZeroPaid are all claiming a big RIAA victory in the decision. It would certainly appear that both claims are in complete contrast to one another.

The reality is somewhere in between -- but leaning very much (unfortunately) towards the RIAA's view of things. If you haven't been following the debate, the RIAA (and the MPAA) have been claiming that they can sue someone for copyright infringement if they put unauthorized files into a shared folder, i.e., making those files available to be shared. Others, such as the EFF, point out that in order to violate copyright law, you have to show that someone actually distributed the unauthorized file, otherwise, it's hard to see how they actually violated the law (i.e., no copy was made, thus no copyright violation). I find this latter argument more convincing, but it's certainly unsettled law. Courts have mostly split on the issue, with some deciding one way and others deciding the other. The RIAA likes to claim that this is settled law -- but it is not.

This latest case became a battleground over the issue, with both viewpoints getting a bunch of amicus briefs from third parties (including the Justice Department, who sided with the RIAA). It also took place in a court that is recognized as having a good grasp on copyright issues, meaning that it could weigh more heavily on other court decisions. So how did it actually play out when you have both sides claiming victory? Well, read the full confusing decision below to see:

What appears to have happened (and I'm no lawyer), is that the court was convinced that "publishing" and "distribution" are synonymous under the law. Thus, "publishing" content could be seen as "distribution." The EFF's response convincingly argues why this is wrong, but it's a bit late now. Thus, under that definition, if the court is convinced that putting a file into a shared folder is the equivalent of "publishing," then that could be a violation. However, the court hedges a bit, by saying that "making available" by itself is too broad and not clearly supported by the law (or the courts). So, as far as I can read it, it's saying that "publishing" is distribution, so the RIAA (or any other copyright holder) can get away with showing evidence of publishing. At the same time, it argues that merely "making available" isn't enough to be infringement, but if the copyright holder can convince the court that putting a file in a shared folder is the equivalent of "publishing" then that's good enough. So, yes, technically the court said making available isn't infringement, but it also expanded the definition of distribution such that it may just be a technicality that "making available" isn't infringement. This ruling pretty clearly leans towards the RIAA's belief in how copyright law should act.

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Another Court Rejects RIAA's 'Making Available' Claim

from the good-news dept

Yet another court has rejected the RIAA's "making available" theory of copyright infringement. As a central part to most RIAA cases against individuals for file sharing, the record labels have insisted that merely making an unauthorized music file "available" for file sharing is the equivalent of copyright infringement. Others have pointed out that the law is pretty clear that there needs to be actual distribution (i.e., a copy is actually made) before you can show infringement. The RIAA doesn't like that theory because the evidence they have usually only shows that a file is available, not that it was actually shared. The specific case at hand involved the RIAA asking for a default judgment against an individual who did not respond to charges of infringement, but the judge rejected the default judgment, noting that by using the "making available" standard, the complaint was insufficient. The judge, among other things, points to William Patry's book on copyright, where he explains that "without actual distribution of copies.... there is no violation [of] the distribution right" and also to the infamous Perfect 10 ruling concerning copyright infringement of thumbnail images.

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EFF Files Brief In Howell Case, Says 'Making Available' Is Not Infringement

from the infringement-needs-to-show-infringement dept

While much of the attention paid to the RIAA's case against Jeffrey Howell has been on the incorrect assertion that the RIAA was claiming Howell infringed simply for ripping his own CDs, what the RIAA is actually claiming is still quite questionable. What it was really claiming was that simply by putting any files (ripped or downloaded) into a shared folder, he was infringing. This is the same "making available" theory that the RIAA has been pushing for quite some time -- despite having courts clearly say that making available is not infringement. Of course, by constantly pushing this point in case after case (and usually losing), the RIAA has found a few judges who agree -- though, it almost always comes in cases where the defendant is acting as his or her own lawyer, rather than having a real lawyer defend the case. The key question is what part actually constitutes infringement. Is it actually having the copy made, or just offering the file up? With most courts agreeing that the actual act of making the copy has to occur, the EFF has filed an amicus brief in the Howell case, notifying the judge of all the various cases where "making available" has been rejected as being infringement.

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Judge Says That Making Available Is Infringement... RIAA Pounces Immediately

from the one-step-backwards dept

One of the key points in the various lawsuits that the RIAA has filed against people for file sharing is whether or not the RIAA can prove actual copyright infringement. Many have argued that there needs to proof that an infringing file was actually distributed -- otherwise, there's no violation under copyright law, which requires "distribution." The RIAA, of course, feels that just making a file available is enough to be considered distribution. It's not a settled matter of law with some judges ruling that making available is not distributing, but others feel the other way. In the latest such case, a guy who was defending himself without a lawyer (generally not such a good idea) failed to convince a judge that making available wasn't distributing. Unfortunately, in not getting good representation, this ruling is now in the books, and the RIAA immediately used it to push other judges to rule the same way. Luckily, the defendants in those other cases do have lawyers, who are questioning the original ruling by pointing out that the guy didn't have a lawyer, the judge made incorrect references to other cases and that the judge never showed how making available qualifies as distribution under the law.

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