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"Making available" case ends in a legal victory for the music industry

Bronx resident Denise Barker will pay the Recording Industry Association of America $6,050 to settle Elektra v. Barker (PDF), a lawsuit surrounding music shared over the Kazaa P2P network. The amount equals out to an expensive $756 per song for eight tracks from artists ranging from Lenny Kravitz to DMX.

Barker’s case took an unusual turn a couple of weeks ago, when she admitted liability for sharing the songs and instead proceeded to attack the characteristics of the case presented against her, including an attempt to challenge the constitutionality of the Copyright Act and the RIAA’s use of an unlicensed investigator and unlawful pretexting techniques.

According to copyright law blog Recording Industry vs The People, run by her lawyer, Barker argued that RIAA’s claimed statutory damages range anywhere from 2,142 to 428,571 times the actual damages inflicted – arguing instead that she should be held liable for no more than $3.50 per song per upload.

Elektra v. Barker was one of the spotlight cases for the concept of “making available,” a tactic that allows defendants to be held liable for copyright infringement merely for the act of making a song available for download – regardless of whether they actually uploaded a single byte. This is commonly raised through a P2P application’s “shared folders” feature, which is designed to store the library of music that the user both downloads to and makes available for upload to others.

Barker previously argued that the RIAA could not prove she shared any music simply by making it available in her computer’s shared folders, and as a result of this and other arguments the case took close to three years to reach its conclusion.  Worse, the amount that the RIAA won is merely double its standard settlement rate.

Court opinion, up until recently, favored the RIAA in the “making available” debate, but the pendulum has since shifted towards the defendant: the $222,000 legal victory for the RIAA at the expense of Minnesota woman Jammie Thomas is undergoing reevaluation by its judge, who, prompted by recent cases in Arizona and Florida, voiced his unease with a jury instruction that required Thomas to be held liable for the contents of her shared folder. The RIAA argues that shared folders are the equivalent to a DVD table, whereby a pirate displays his or her goods openly for others’ perusal.

Despite the more than 20,000 lawsuits under its belt, the heavy majority never make it to trial. The few that do have generally ended up in the RIAA’s favor, but both sides of the debate have enjoyed a fair share of legal victories. In some cases, the waves of prelitigation letters sent to college students – seemingly the RIAA’s favorite target – enjoyed a 99.6% capitulation rate at one university, with students settling for amounts ranging from $3,000 to $5,000 USD.

To cover her settlement, Barker will make 55 payments of $110, with the last payment made in February 2013.

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<puts tin foil hat on>
By vapore0n on 8/19/2008 8:05:41 AM , Rating: 2
Suddenly admitted?

Maybe she ran out of money?
Maybe she got bought so that RIAA could have a win under their belt, which could be used in future cases?

RE: <puts tin foil hat on>
By mdogs444 on 8/19/08, Rating: -1
RE: <puts tin foil hat on>
By angryandroid on 8/19/2008 8:58:50 AM , Rating: 2
But the point of damages is to make up for lost business or lost benefit of some kind. To pay what is owed so to speak.

So if you download a single song, then yup the damages should be £1 or whatever. If you upload that song to 1000 people, thats £1000 in lost revenue. It's not a whatever we feel like deal - stupid American courts!!!

Damages should be proportionate and of course include legal fees if lost. What else are the RIAA looking for?

RE: <puts tin foil hat on>
By mdogs444 on 8/19/08, Rating: -1
RE: <puts tin foil hat on>
By BladeVenom on 8/19/2008 11:17:26 AM , Rating: 5
But 756 times the amount is downright barbaric.

RE: <puts tin foil hat on>
By MatthiasF on 8/19/08, Rating: -1
RE: <puts tin foil hat on>
By Yawgm0th on 8/19/2008 1:49:14 PM , Rating: 5
What does that have to do with anything? No crime has been committed, and there is no criminal case in question. You're analogy is completely irrelevant. We are talking about civil suits. The purpose of civil law is not to deter anything. It is to award the plaintiff for damages.

RE: <puts tin foil hat on>
By MatthiasF on 8/19/08, Rating: -1
RE: <puts tin foil hat on>
By redbone75 on 8/20/2008 12:53:47 AM , Rating: 3
Kidnapping, a crime where no one gets hurt but someone's time and rights are taken temporarily.

What kind of moron are you? Just wondering. I mean, sure, absolutely no one gets hurt in a kidnapping. Not the abducted person, who is terrified wondering if he/she might even survive and is emotionally scarred the rest of his/her life. Definitely not the victim's loved ones who are devastated by it all happening. Sure, no one gets hurt in a kidnapping.

Equating kidnapping and downloading music... help me out here, I'm lost. Let me guess: you failed Introduction to Logic, didn't you?

RE: <puts tin foil hat on>
By jimbojimbo on 8/20/2008 2:41:48 PM , Rating: 1
Kidnapping, a crime where no one gets hurt but someone's time and rights are taken temporarily.

What?? So you're saying that if I kidnap you, hold you for a week, and then let you go you'll somehow miraculously get that week back?

RE: <puts tin foil hat on>
By Hyperion1400 on 8/19/2008 2:09:46 PM , Rating: 3
- 8th Amendment of the US Constitution

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The fact is that this is a civil case not a criminal trial. The point is to punish. But, the one at fault is punished by being fined for the damages they have failed to pay. Not some arbitrary and highly excessive amount deemed worth by the plaintiff. I think the judge must have been smoking the ole crack pipe to have let an amount like that slip by him.

RE: <puts tin foil hat on>
By MatthiasF on 8/19/08, Rating: 0
RE: <puts tin foil hat on>
By Solandri on 8/19/2008 4:20:48 PM , Rating: 4
But 756 times the amount is downright barbaric.

It's that high because they're taking a law meant to punish commercial copyright violators, and applying it to individuals. i.e. When the lawmakers passed the law, they were thinking of the folks who stamp and sell knockoff CDs on street corners, or even trick retail chains into thinking they're legit. They weren't thinking of a stay-at-home mom downloading a few MP3s.

RE: <puts tin foil hat on>
By omnicronx on 8/19/2008 10:16:31 AM , Rating: 5
If they only fined everyone $1 per song, then there would be no reason to NOT pirate - because if you get caught, you just pay what you would have anyway.
But the case was not about her downloading songs, it was about making songs available, regardless if anyone downloaded them or not.

Its becoming pretty obvious that the RIAA is not deterring anyone, and eventually they are going to screw with somebody that actually has the money to drag a case on for 4 years and outright win.

90% of downloaded music on the internet comes from release groups, not some amature ripping their CD's with windows media player.

If the RIAA was actually serious about stopping pirating then they would continue to go after the big players like they did in the late 90's. I personally know that this scared more people than a few kazaa file sharing cases ever will. Groups stopped trusting anyone as government agents were posing as users that could serve as a dump or who had lots of bandwidth to share, and things really hit a standstill for 2-3 years, that was until they stopping going after the groups and started going after clueless kazaa and limewire users.

Torrent sites don't get their music from nowhere, take down the source, and you will limit the damage, take down potential customers that downloaded a few songs and you are going to have some angry people on your hands.

p.s my favorite thing about these suits is that I personally have a few hundred gigs of mp3s which probably total billions of damages to the RIAA, and I am sure there are countless others in my boat, yet its some lady in her 40's who had 10 songs shared, and someones dead grandma that are feeling the heat..

Police don't go after the crackhead selling dime bags on the corner of the street, they go after the dealer.. Maybe the RIAA should start using the same playbook.

RE: <puts tin foil hat on>
By MrBlastman on 8/19/2008 10:49:59 AM , Rating: 5
For sure. This could be seem similarly to the war on Drugs - go after the source that produces them and shut that down.

If you kill off the supply, the demand will go unmet. Either they'll find another way or learn to not have what they had before.

Oh wait... What have I done?

I've /between the lines/ singlehandedly suggested that we shut down the Music Industry! o_O

Long live independent artists. ;)

RE: <puts tin foil hat on>
By mikeyD95125 on 8/19/08, Rating: 0
RE: <puts tin foil hat on>
By MrBlastman on 8/19/2008 5:34:26 PM , Rating: 2
That's the problem - the War on Drugs has NOT been going after the source (bombarding Columbia, sabotauge, sanction missions targeted at Drug lords).

If they did, things might be different. They're too busy locking up two-bit pusher men rather than taking out the big guys.

But, I digress. You missed the joke. :)

RE: <puts tin foil hat on>
By mars777 on 8/19/2008 9:30:30 PM , Rating: 2
If they did, it would have ill effects on the earnings of some big heads in the world, some of them possibly financing in one or another way the same people that dictate laws. Maybe even shake up the finance of big countries, not excluding the US. Probably even starting a few wars or other terroristic actions.

That's why they go to the middle range and no further into the problem. It's safer.

An analogy would be in the global warming problem: you can stop the global warming easily by banning the production of oil progressively fast and switch to a new type of fuel: water. But what is implicated loss further on or the negative effects of the industry cartels on the law makers?

They think before they act, and they act like this: "Why create further problems that you are unsure on how to handle?". The most important thing for a politician is how to save his own as* and remain a politician for the next mandate :)

RE: <puts tin foil hat on>
By MrBlastman on 8/19/2008 9:41:34 AM , Rating: 3
If should would have kept her mouth closed and not admitted to things, the RIAA would potentially have had a very difficult time proving intent.

RE: <puts tin foil hat on>
By Samus on 8/20/2008 3:48:15 AM , Rating: 2
as said, she should have settled.

i know two families that both settled in the $5000 ballpark. no legal fees or waste of time, just a huge fine, but not as big or as painful as it could be. i'd bet they shared out a hell of a lot more than eight tracks too.

By kelmon on 8/19/2008 8:56:05 AM , Rating: 2
Here's a question for someone knowledgeable in US law (my knowledge stems from the likes of Law & Order and Boston Legal, so may be utter crap):

If someone is selling counterfeit or stolen goods (such as at a market), do they need to make a sale before they can be arrested?

I think you can all pretty much guess where I'm going with this. I suspect that the rozzers can arrest you immediately for even attempting to sell stolen/counterfeit goods but perhaps this assumption is incorrect. Equally, can you be arrested if you are giving this stuff away for free?

RE: Question
By nycromes on 8/19/2008 9:10:39 AM , Rating: 2
With movies, you can be arrested/fined for criminal copyright infringement even without monetary gain. I don't know how it applies to other things like watches/purses/music etc.

I am fairly certain you can get in trouble for giving away counterfeited goods as well. The copyright holder would certainly have a case for recouping damages in this case at least. Again, not that familair with the law (the first paragraph above is based on the FBI warning on movies).

RE: Question
By mdogs444 on 8/19/2008 9:11:02 AM , Rating: 2
someone is selling counterfeit or stolen goods (such as at a market), do they need to make a sale before they can be arrested?

You can be arrested for merely having possession of stolen goods - regardless if your intent is to sell.

RE: Question
By crimson117 on 8/19/2008 9:38:32 AM , Rating: 2
someone is selling counterfeit or stolen goods (such as at a market), do they need to make a sale before they can be arrested?
You can be arrested for merely having possession of stolen goods - regardless if your intent is to sell.

True for stolen goods and perhaps counterfeit goods (IANAL), but untrue for *copyright infringing* goods such as a digital music file to which you do not own the distribution rights.

RE: Question
By omnicronx on 8/19/2008 10:48:21 AM , Rating: 2
But thats not what this is about, for all you know every file in their shared folder was personally ripped from CD's they own. According to the fair use this would be perfectly legal, so yes, they would have to sell the product before they could be arrested in this case.

p.s I am not pro-piracy, although I have many downloaded mp3s, I buy almost all the albums that I like. I have a few thousand CD's so its not like I do not support the artists that I like.. Would I have bought all these CD's if I had not heard them first, nope..... just a thought for all those stealing is stealing advocates out there..

I can't feel bad either, when the margins on media was around 500-1000% for 20 years after advertising, shipping and the artists cut had already been taken into account. Poor RIAA, they will only make 30 billion instead of 50 they were making 10 years ago...

RE: Question
By MatthiasF on 8/19/2008 10:38:46 PM , Rating: 2
Ripping CD's is not fair use. It's only tolerated at the moment.

I think you guys overestimate how much money members of the RIAA make.

Most RIAA members are publicly traded companies, so how about you guys go take a look at the books and show me the 1000% markup.

For the longest time people thought the Catholic Church was rich until Pope John Paul opened the books to the public. When people actually saw the church was barely making ends meet, the hatemongers were shown for what they really were.

RE: Question
By mindless1 on 8/20/2008 3:38:34 PM , Rating: 2
Many do consider ripping CDs for playback on their own non-CD audio equipment to be fair use, that we shouldn't have to pay multiple times to listen to the same song on both our MP3 player and home stereo, especially when you can't realistically listen to both simultaneously but could play back the track over and over again on either.

RE: Question
By kelmon on 8/20/2008 3:13:03 AM , Rating: 2
I thought "Fair Use" in this context only applies to your own usage of the media. Surely distributing your media to total strangers no longer constitutes "Fair Use", particularly when everyone gets their own copy of the original.

With respect to the "I wouldn't have bought the CD unless I'd downloaded it first" argument, that can't be accepted because of the precedence that it would set. If that was to be accepted then how long should you be allowed to keep the downloaded tracks before you are required to either buy the CD or delete them? You'd end up with people in court defending themselves by saying that they were going to buy the CD when they actually never had any intention of doing so. I have sympathy for "upstanding" downloaders who use the downloaded tracks as a means to determining whether they want to buy the music but I cannot condone it.

RE: Question
By Topweasel on 8/19/2008 9:16:16 AM , Rating: 4
Well their would probably be counterfeiting laws setup for just being in possession with the intent to sell of those types of goods. The question would be if placing music in publicly accessible folder is really illegal? I mean if I legally had copies of my music in a public folder on vista and a friend copied that without me knowing one day, did I just do something illegal? What if I put it there to have let my friends listen to it is that illegal? Is that really any different then a DJ who uses his personal MP'3 for shows? If my friends have a legal copy but he copies my MP3's because he doesn't have a ripper, is that illegal?

I ask these questions because digitally it might not make a difference if this was my home network or www. That's where we need better information and a better defined fair use doctrine that isn't superseded by other crap later.

For the people that said she was caught red handed and should pay up. It may never get to the home network but a lot of what people a getting sued for applies directly to home uses that would seem OK and/or not your fault.

The logic escapes me completely...
By Landiepete on 8/19/2008 10:17:43 AM , Rating: 5
OK, I'm not a US citizen.But the reasoning behind the 'making available' bewilders me.

If I leave my house unlocked (shared) I could be fined the value of the stuff inside my house because it is AVAILABLE for theft ?

I choose my words carefully. Was it not the RIAA and the software companies that launched the slogan 'copying = theft' or something along those lines ?

So it is no longer the pickpocket that steals your wallet but you that is prosecuted because your wallet is 'available for theft' ? Not because it was acually stolen, but 'available' ?

I have a Microsoft Home Server, fully licenced. I have taken advantage of the possibility of creating an URL so I can remotely access the stuff on my server.

So am I now in danger of being prosecuted by the RIAA because theoretically someone could hack into my box and download the music I have (legally) stored on it ? Not because someone actually has, but because it is 'available'?

I'm having great difficulty wit this. Could Microsoft equally be sued by the RIAA because they have built the software that makes this 'availability for theft' possible.

I am truly concerned about this.

Peter R.

RE: The logic escapes me completely...
By DASQ on 8/19/2008 10:29:29 AM , Rating: 2
The logic is the same in both your examples and theirs, but the RIAA is depending specifically on unlogic.

Maybe the RIAA will go after software manufacturers after they've run out of people to sue (hah!).

RE: The logic escapes me completely...
By omnicronx on 8/19/2008 10:35:29 AM , Rating: 1
If I leave my house unlocked (shared) I could be fined the value of the stuff inside my house because it is AVAILABLE for theft ?
I guess somebody has never had theft insurance...
So it is no longer the pickpocket that steals your wallet but you that is prosecuted because your wallet is 'available for theft' ? Not because it was acually stolen, but 'available' ?
Well to be fair, unless you had a sign on your pocket that said 'please take me', its really not the same thing..
I have a Microsoft Home Server, fully licenced. I have taken advantage of the possibility of creating an URL so I can remotely access the stuff on my server.
As long as its for personal use only, that's perfectly legal, regardless of the legality of your content.
So am I now in danger of being prosecuted by the RIAA because theoretically someone could hack into my box and download the music I have (legally) stored on it ? Not because someone actually has, but because it is 'available'?
No.. because its a closed environment that somebody had to circumvent security in order to access it, once again you would be in the clear.

I am totally on your side, but no matter where you live its pretty easy to prevent, just don't have a shared folder.. it solves all your problems... Its the fact that the RIAA will go after people that probably have a fraction of the music that most people have just because they do not know how to turn off sharing concerns me..

RE: The logic escapes me completely...
By Methusela on 8/19/2008 6:00:35 PM , Rating: 2
How about this one, then?

I tell a friend she can borrow any storebought CD in my collection.

Is this not the same exact premise as 'making available'? Hell, what if I give several storebought CDs as recommendations she might like! Even worse! Then I'm not only 'making available' but also actively distributing!

RE: The logic escapes me completely...
By MatthiasF on 8/19/2008 10:43:20 PM , Rating: 2
Borrowing a CD and giving the CD to someone to copy are two completely different acts.

You offer the MP3 files (which aren't legit either unless you bought the MP3's themselves) on your webserver/P2P/etc. for another user to copy to their computer (download).

There is no "borrowing" in the scenarios discussed here. You need to copy the file from computer to computer in order to listen to it.

By mindless1 on 8/20/2008 3:28:23 PM , Rating: 2
You say they aren't legit MP3s, but that doesn't really make it true as the majority involved don't feel that way, instead wanting fair use of their music collection on devices that play back alternate formats besides a physical CD.

RE: The logic escapes me completely...
By Landiepete on 8/20/2008 2:21:31 AM , Rating: 2
Or worse. The friend copies your CD without your knowledge and puts it on P to P.

Following the 'making available for download' school of thinking you would then have to prove you were unaware of the person's intent to copy and share your CD.

I guess the judges now revising their rulings were just a bit slow on the uptake.

By kelmon on 8/20/2008 3:19:31 AM , Rating: 2
I rather think you'd be in the clear here and it your friend that would be buggered. After all, it was the friend that made the copy of the CD, without your consent, and it is unlikely that the authorities could trace that copy back to you unless your "friend" tells them. Even so, you provided the CD solely so that they could listen to it only. Unless it can be proven that you lent them the CD and gave permission for a copy to be made, I think you'd be OK.

How this works out in practice, however, remains to be seen. This comment certainly does not represent legal advice...

By Landiepete on 8/20/2008 2:18:17 AM , Rating: 2
I'm not sure if in-sewer-ants enters into the equation. I also do not understand the 'sign on chest' argument.

Surely, 'available for download' does not take into account the state of mind of the alleged filesharer.

The argument developed is that the stuff is there for taking, regardless of the fact IF it has been taken or not.

I'm still confused.

What type of case is this, exactly...
By A5un on 8/19/2008 11:12:29 AM , Rating: 2
If I were to get sued by the RIAA today, would it be a civil or criminal trial? It seems the for amount I would be fined, it'd be a punitive fine in the sense that the court is punishing me more so than making me pay back what I've stolen. This then seems to be a criminal case?

If so, haven't they then got to prove me guilty beyond reasonable doubt then (ie, evidence of my HD with their songs etc)? But it appears that the RIAA doesn't need to do that.

RE: What type of case is this, exactly...
By tmouse on 8/19/2008 11:51:40 AM , Rating: 2
No ALL cases from RIAA or any other group are civil cases. Only the government can file criminal cases. The burden of proof is only 51% in civil cases; not guilty beyond reasonable doubt. The assumptions are the litigant's are equal; of course with corporations that is not true. They enjoy the best of both worlds with more money and power than many local governments and none of the civil rights limits.

RE: What type of case is this, exactly...
By pomaikai on 8/19/2008 1:24:24 PM , Rating: 3
Then we should start using a handicap for court cases. If the defendent has alot less money than the burden of proof needs to be 75% or something. In this case billions vs not much it should be 99.9%.

By MatthiasF on 8/19/2008 10:47:14 PM , Rating: 2
So, you're saying poor people have the right to steal?

Would someone with hours left to live have the right to murder?

Justice is suppose to be equal for everyone. The settlement after being found guilty can be adjusted depending on the circumstances, but the crime should be judged by the same standards as anyone else.

Actual damages vs. damages awarded
By johnbuk on 8/19/2008 9:02:16 AM , Rating: 4
Here's the thing I don't get with all these cases- why doesn't the RIAA have to prove how many times something was actually downloaded? I understand a certain amount of punitive damages, but these always seem excessive.

To me this is like someone stealing $1000 from someone else and getting caught and then having to pay back $10,000 because that was the amount that could have been stolen.

It just seems like in most other cases of theft that actual damages have to be proven and people are punished based on what they did not what they could have done.

By Staples on 8/19/2008 12:52:52 PM , Rating: 4
Legal teams are really expensive.

Welcome to the world of business.

By ggordonliddy on 8/19/2008 1:46:00 PM , Rating: 5
Anyone listening to DMX should have to pay up a lot more than she was fined.

make available
By Screwballl on 8/19/2008 2:08:46 PM , Rating: 3
So if I put a music CD I bought on a table, I am making it available for anyone to grab, use or listen to. So does that mean that I am liable for "making it available" when someone else took it from where I left it against my will?
I left my car without keys in the parking lot and someone stole it, am I liable for then getting hurt in my car when they crash it because I "made it available"?

This is crap... I hope RIAA gets nailed with a multi-million dollar class action lawsuit that will shut then down for good.

RE: make available
By kelmon on 8/20/2008 3:24:32 AM , Rating: 2
Depends on whether your CD is left in a public place with a sign on it that say "Please copy me". In that case, which is essentially what happened here, I think you'd be liable for "making it available".

Basically, this is not crap and the likelihood that the RIAA will "get nailed" is very slim indeed. The only line of defense here that I can see is the "idiot defense" where you try to prove that you had no idea that the music on your computer could be downloaded by anyone else and that you thought that downloading it originally was legally OK.

By whirabomber on 8/19/2008 10:35:31 AM , Rating: 3
Although being treated like a joke since 9/11, but a heck of a lot of all the RIAA's cases are based on a law that assumes guilty until proven innocent. If anyone gets pinged by the RIAA who has both time and money would waltz to the Supreme Court which wouldn't be in the best interest of the RIAA.

Of course, let us not forget all the folks who got the free music but none of the legal liability skating. The RIAA would make more money with a "honey pot" approach - put a ton of music on a P2P, wait for folks to grab a song or two, raid their houses with swat, seize their equipment, and fine the owner an unsubstantiated large amount of cash for each song they find.

The only solution
By Soulkeeper on 8/19/2008 7:12:16 PM , Rating: 2
One word bankruptcy
that's the only way out of these things imo ....
imagine if it was 100, 1000, 50000 songs ...
would they hang her ?

MPAA and the courts, protecting our freedoms by making americans file for bankruptcy and giving musicians like 5 cents a song ....

"Nowadays, security guys break the Mac every single day. Every single day, they come out with a total exploit, your machine can be taken over totally. I dare anybody to do that once a month on the Windows machine." -- Bill Gates

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