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Foundation on which RIAA builds cases in danger of being undermined
Written by Daniel   
Tuesday, 21 August 2007 10:39
Foundation on which RIAA builds cases in danger of being undermined
ARS Technica
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.


 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... MORE

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