[Infowarrior] - Judge rejects RIAA's "making available" claim

[Richard Forno]

http://www.p2pnet.net/story/15049

Judge nails RIAA Œmaking available¹ claim

p2pnet news | RIAA News:- The mainstream media have already completely
missed one of the most important events so far in the ongoing, and always
vicious, fight between Warner Music, EMI, Vivendi Universal and Sony BMG and
their own customers, whom they¹ve ignominiously labelled ³criminals² and
³thieves².

Last week Dutch P2P expert Johan Pouwelse deconstructed RIAA Œexpert¹ Doug
Jacobson¹s Œexpert¹ testimony, calling it ³borderline incompetent² and
saying allegations of copyright infringement levelled at a 57-year-old New
York home health aide were ³unproven².

It went virtually unmentioned.

Will they similarly also miss what¹s quite possibly the most important
development so far?

Connecticut district judge Janet Bond Arterton has thrown out the RIAA¹s
infamous ³making available² claim which comprises the bottom line for all
the Big 4 P2P file sharing cases.

ŒProve it!¹ - she says in effect.

Under the claim, the RIAA tries to assert merely having a shared files
folder that can be accessed is copyright infringement, a specious argument
already explicitly dismissed by judge Marilyn Hall Patel in her Napster
decision.

In Canada, justice Konrad von Finckenstein ruled, ³No evidence was presented
that the alleged infringers either distributed or authorised the
reproduction of sound recordings. They merely placed personal copies into
their shared directories which were accessible by other computer user(s) via
a P2P service.²

Then a year later almost to the day, New York social worker Tenise Barker
came under attack with the RIAA arguing that simply making a file available
in and of itself constitutes a copyright infringement.

³Were the courts to accept this misguided view of copyright law, it could
mean that anyone who has had a shared files folder, even for a moment, that
contained copyrighted files in it, would be guilty of copyright
infringement, even though the copies in the folder were legally obtained,
and even though no illegal copies had ever been made of them,² Ray
Beckerman, one of the attorneys representing Barker, told p2pnet.

Matt Foster, a lawyer with Indiana Legal Services, unearthed this latest
case, says Beckerman in Recording Industry vs The People.

In Atlantic v Brennan, in a 9-page opinion (pdf), district judge Janet Bond
Arterton ruled the RIAA has to to prove ³actual distribution of copies² and
can¹t rely on the mere fact there are song files on the defendant¹s
computer, and that they were ³available².

³This is the same issue that¹s been the subject of extensive briefing in two
contested cases in Elektra v. Barker and Warner v. Cassin,² says Beckerman.

Arterton also held the defendant ‹- who wasn¹t even present at the decision
‹- had other possible defenses, such as whether or not the RIAA¹s efforts to
claim $750 for each allegedly infringed song is unconstitutional, and
possible copyright misuse flowing from the record companies¹ anticompetitive
behavior.

Definitely stay tuned for this one.