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 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 in Elektra v. Perez also considered the argument after the RIAA decided to dismiss the case and the defendant argued that the case should be dismissed with prejudice. 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 Warner 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.

US Attorney General Gonzales resigns

By MATT APUZZO, Associated Press Writer 1 minute ago

WASHINGTON - Alberto Gonzales, the nation's first Hispanic attorney general, announced his resignation Monday, driven from office after a wrenching standoff with congressional critics over his honesty and competence.
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Republicans and Democrats alike had demanded his departure over the botched handling of FBI terror investigations and the firings of U.S. attorneys, but President Bush had defiantly stood by his Texas friend for months until accepting his resignation last Friday.

"After months of unfair treatment that has created a harmful distraction at the Justice Department, Judge Gonzales decided to submit his resignation and I have accepted his decision," Bush said from Texas, where he is vacationing.

Solicitor General Paul Clement will be acting attorney general until a replacement is found and confirmed by the Senate, Bush said.

Homeland Security chief Michael Chertoff was among those mentioned as possible successors, though a senior administration official said the matter had not been raised with Chertoff. Bush leaves Washington next Monday for Australia, and Gonzales' replacement might not be named by then, the official said.

"It has been one of my greatest privileges to lead the Department of Justice," Gonzales said, announcing his resignation effective Sept. 17 in a terse statement. He took no questions and gave no reason for stepping down.

Bush denounced what he called "unfair treatment" that he said prevented Gonzales from adequately doing his job. He said the attorney general's "good name was dragged through the mud for political reasons."

Though some Republicans echoed Bush's veiled slap at Democrats, Gonzales had few defenders left on Capitol Hill.

"Better late than never," said Democratic presidential candidate John Edwards, summing up the response of many to the resignation.

Many Republicans welcomed the departure of the embattled attorney general, some quietly and others publicly so.

"The attorney general's decision to step down is a positive step forward for the Department of Justice," said Sen. Susan Collins, R-Maine.

"Attorney General Gonzales' ability to lead the Department of Justice had been undermined by his serious errors in judgment and conflicting statements," she said in a statement.

Attack on girl was gang-related

A shovel-wielding Good Samaritan who came to the aid of a 16-year-old sexual assault victim says he was told the assault was part of a gang initiation.

The Saskatoon man said he and his father were walking to their garage in the city's Pleasant Hill neighbourhood at about 10 p.m. Monday when they heard a woman scream.

When they went to investigate, they saw a man on top of a young woman, who was screaming.

"He started to hit her so we ran up," said Stephen, who didn't want to give his last name out of concern over gang reprisals.  "There was three of us — the neighbour from downstairs and my father and me — and we started yelling at this guy."

Stephen said the attacker was trying to pull up his pants as he tried to get away.
Stephen chased him over a fence and through the next few backyards, then found a shovel.

"He said, 'Don't hit me. I'm getting jumped into a gang and this is what I have to do.' And that's when I proceeded to hit him with the shovel," Stephen said.