Copyright Law

RIAA files more papers opposing motion to quash in Boston, admits MS got 'cease & desist' letter, argues 'making available' violates Copyright Act

By Ty Rogers and Ray Beckerman

In Arista v. Does 1-21, the case targeting students at Boston University, the RIAA has filed further papers responding to the supplemental papers filed by the students and the amicus curiae brief submitted by the Electronic Frontier Foundation.

Their new papers

-admit that MediaSentry received a cease and desist letter from the Massachusetts state police;

-argue that MediaSentry was not violating Massachusetts law;

-argue that "making available" is a copyright infringement, despite the absence of any reference to it in the Copyright Act; and

-characterize the articles cited by the students in their briefs as "vitriolic blog postings of disgruntled individuals and a handful of commentators".

[Ed. note. To the extent that the last comment was directed at "Recording Industry v. The People", I would like to make the following clarifications: (a) I confess that "vitriolic" is a good word to use to describe the feelings I have towards the unprofessional behavior of the RIAA attorneys. "Detest", "contemptuous", "outraged", "appalled", "repulsed", and "sickened" also come to mind. (b) However, I am not "disgruntled". I will be "disgruntled" only if the Courts ultimately buy the voodoo legal theories and the fabricated, mislabelled, illegally procured, and doctored "evidence" the RIAA lawyers are attempting to peddle. So far the RIAA has won only one fully contested case, and that case is not over. I expect Mr. Gabriel, Mr. Oppenheim, and their similarly unprincipled lackeys to be the "disgruntled" ones, when the dust settles. And I anticipate that the MediaSentry people will feel "disgruntled" when they wind up behind bars along with their now "former" CFO, which appears likely in view of the recent revelations that they have been conducting investigations without a license, and are presently attempting to deceive the Massachusetts law enforcement authorities as to the nature of their activities on behalf of the RIAA and the record companies. I don't think their ex post facto tampering with the language on their web pages would exonerate them in the eyes of most prosecutors I've met. -R.B."]

We note that the RIAA's brief responding to the John Does' brief cited a New York State Attorney General's Opinion from 1919, but did not annex a copy of the Attorney General's Opinion, which is most unusual, since these are not readily available to the Judge, as published statutes and cases would be. Accordingly we have obtained a copy of the actual opinion (1919 Opinions of Attorney General 256* (November 10, 1919)), which opines on a very different, much narrower, version of the statute than the one in effect today (General Business Law Sec. 70, 71).

RIAA brief in opposition to John Does' supplemental brief*
RIAA brief in opposition to amicus curiae brief submitted by Electronic Frontier Foundation*

* Document published online at Internet Law & Regulation

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Full post as published by Recording Industry vs The People on February 20, 2008 (boomark / email).