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Is "Making Available" Copyright Infringement?
Posted by
kdawson
on Tue Feb 27, 2007 03:30 PM
from the RIAA-theory dept.
from the RIAA-theory dept.
NewYorkCountryLawyer updates us now that the legal issue — is it copyright infringement merely to "make available" a copyrighted work? — has been argued by the attorneys in Elektra v. Barker (on January 26). Whichever way the ruling goes it will have a large impact across the Internet. Appeal seems likely either way. No ruling has issued yet but "a friend" has made the 58-page transcript "available" (PDF here).
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RIAA v. Barker Showdown Slated for January 76 comments
NewYorkCountryLawyer writes "Judge Kenneth M. Karas has set Friday, January 26, 2007, at 2:15 P.M., as the oral argument date for Tenise Barker's motion to dismiss complaint, in Elektra v. Barker, in federal court in Manhattan. The argument will take place at the newer federal court house, located at 500 Pearl Street, New York, New York, in courtroom 21D on the 21st Floor. Proceedings are open to the public. This is the case in which amicus briefs were filed by the Motion Picture Association of America (MPAA), the Electronic Frontier Foundation (EFF), the U.S. Internet Industry Association (USIIA) and the Computer & Communications Industry Association (CCIA), and a Statement of Interest was filed by the U.S. Department of Justice (USDJ). Defendant Tenise Barker moved to dismiss the complaint on the ground that neither downloading nor uploading had been alleged sufficiently to give her notice of what she was being accused of, and on the further ground that merely "making available for distribution" was not a copyright infringement at all. The RIAA and MPAA argued that merely "making available" was indeed a copyright infringement. Defendant, CCIA, and USIIA argued that it was not. EFF argued that intangible computer network transmissions cannot be "distributions" within the meaning of the Copyright Act. USDJ argued that they can be. Defendant refrained from taking a position on that issue here and here. The DOJ refrained from taking a position on the "making available" argument, indicating that it had never prosecuted anyone for "making available". See page 5, footnote 3."
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RIAA's "Making Available" Theory Is Tested 222 comments
NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."
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RIAA Complaint Dismissed as "Boilerplate" 197 comments
NewYorkCountryLawyer writes "The decision many lawyers had been expecting — that the RIAA's 'boilerplate' complaint fails to state a claim for relief under the Copyright Act — has indeed come down, but from an unlikely source. While the legal community has been looking towards a Manhattan case (Elektra v. Barker) for guidance, the decision instead came from Senior District Court Judge Rudi M. Brewster of the US District Court for the Southern District of California. The decision handed down denied a default judgment (i.e. the defendant had not even appeared in the action). Judge Brewster not only denied the default judgment motion but dismissed the complaint for failure to state a claim. Echoing the words of Judge Karas at the oral argument in Barker , Judge Brewster held (pdf) that 'Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation.'"
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Slippery Slope (Score:4, Insightful)
Re:Slippery Slope (Score:5, Insightful)
Distribution versus "making available" (Score:4, Interesting)
I realize the RIAA is focused on people "making available" copyright works via P2P networks, but the legal implications are pretty profound.
Re:Slippery Slope (Score:4, Insightful)
"Yeah...and I haven't heard a specific definition of "making available" yet. Is an inadvertantly shared Windows folder making its contents available? Is leaving my iPod unattended making available the music on it? Is not patching the latest remote security hole in my system fast enough making available everything on my hard drive?"
This is slippery sloping, but it's understandable. If I were defending this case, I'd try the same approach. But, to answer your questions: no, no, and no. This case regards making MP3 files available on a P2P network without authorization from the copyright holder. Negligence and intent play a big part here, and I think it will come down to whether it's reasonable that the defendant should have known better when they installed and used their P2P software for its advertised purpose.
It's often called the slippery slope fallacy because there's often the incorrect inference that A will definitely lead to B. I don't personally think that if the judge rules for the defendant, it automatically means that somebody who misplaces their iPod will be liable... but as I mentioned, if I were defending this case, I'd try to draw that inference.
Library? (Score:5, Insightful)
Re:Library? (Score:5, Insightful)
Granted, plenty of people copy works from the libraries outside of fair use standards but that's not the intended use by the library.
This is probably the same reason the Zune "Squirt" (is that the right term for it?) thing is kinda winked on, it's not a permanent copy but rather a lending of materials.
Re:Library? (Score:4, Insightful)
The distinction is significantly less relevant than you seem to think. Accessing a file on a computer makes at least one copy into RAM. Accessing a file across a network probably makes at least four copies: disk cache on sender, recipient RAM, recipient disk cache, recipient disk.
With computerized data, "making a copy" is just a natural thing that happens. Making it into a big deal is silly - this isn't a printing press where "making a copy" is hard work, with a computer everyone who has ever seen a file naturally has a copy of it. Yes - that means that selling computerized versions of books isn't going to work if libraries lend out computer files. Maybe that's ok - not everything has to be a new revenue source.
Re:Library? (Score:5, Insightful)
Well, except that media/publishing companies have been trying to have libraries removed as an exception. It is, in fact, a perfectly useful example -- because if someone gets a law passed which doesn't grant an exemption to libraries, really bad things (tm) will happen.
The poster was pointing out how exactly a library could run afoul of such things if the corporations had their way.
Cheers
Interesting idea - definition of a library (Score:5, Insightful)
From Merriam-Webster: [m-w.com]
1 a : a place in which literary, musical, artistic, or reference materials (as books, manuscripts, recordings, or films) are kept for use but not for sale b : a collection of such materials
Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?
Re:Interesting idea - definition of a library (Score:5, Insightful)
Because in order to play it on your computer, you must make a copy, whereas the library lends you the copy, depriving them of their sole copy, and they lose if you do not return it. This is what the media companies want, so that libraries keep having to buy content.
Of course, it's also why they want to prevent you from making your legally protected backup copies for personal use.
Re:Interesting idea - definition of a library (Score:4, Interesting)
This belief that copyrighted material *has no intellectual value* is absurd. If it has no intellectual value, then obviously there's no reason to restrict copying it. If it has intellectual value, then obviously others benifit if you share it with them.
Further, just because some act of sharing would be copyright infringement *doesn't* mean that helping others by sharing information isn't a good thing. When your parents taught you that sharing was good they were right... some sharing just happens to be illegal now.
Re:Library? (Score:4, Insightful)
Hell, I could offer up my collection of PDF's as a library if you want.
This is about a fundamental extension of copyright law that would have prevented libraries if it had been present when they started.
Magical "Right of First Sale" (Score:4, Insightful)
Without "first purchase," all libraries, used bookstores, used record stores, video rental stores, etc. would have to separately negotiate the right to lend, resell or rent each and every copyrighted work and pay royalties--and that's assuming they could even find the rights holders. There would be no libraries. The copyright industry doesn't like the secondary market that "first purchase" allows because it means that multiple people can enjoy a copy of a book or video. "First purchase" also interferes with their ability to create scarcity in the market which lets them raise prices. Currently the copyright industry is working on making your "first purchase" rights null by using DRM to make exercising your rights technologically impossible. For instance, legally you may have a right to re-sell a song you have purchased on iTunes (Apple has even admitted it to CNet) but they will not make it possible to transfer a song technologically.
Illegal to not report a crime? (Score:5, Interesting)
I wonder what would happen if some broke into a house, instead of taking away CDs, he just copied them and left, would the house owner be liable for copyright infringement?
Re:Illegal to not report a crime? (Score:5, Funny)
Only if he runs off with the original and leaves you with a copy
Re:Illegal to not report a crime? (Score:5, Interesting)
No, I would say it's more like this. Suppose I built a device that could duplicate any physical item given to it exactly. Further suppose that people started using this device to duplicate cars so they didn't have to pay buy one from a car dealer.
The car dealers, facing the total destruction of their business, decide to lobby Congress to pass laws that makes these duplication devices illegal. This, however, doesn't work. People are still making copies in the black-market.
So again, through the courts and congress they attempt to make putting a car in any public place a crime.
I know this is a bat-shit crazy analogy but to some extent that is because what the music industry is doing is bat-shit crazy.
What really hurts is that Congress and the RIAA have totally missed just how revolutionary the Internet is. You'd expect the RIAA to be blind to this because of their own vested interests but for Congress to so completely miss the point is unforgivable.
Simon
Knowingly and unknowingly? (Score:3, Interesting)
slippery slope (Score:5, Funny)
This of course, leading to 2011's legal dilemma: Is it copyright infringement to "view" a copyrighted work?
Moot (Score:3, Insightful)
This case in question sounds like it's arguing a technicality - which is trivial for any lawyer to work around by showing that copies were made from the site (rather than simply being posted.)
Re:Moot (Score:4, Insightful)
Re:Moot (Score:4, Informative)
How does this affect other sources? (Score:5, Interesting)
Re:Lazy Lawyer (Score:4, Insightful)
Sometimes you ask a question to make people think about the issue [wikipedia.org].
Re:man copyright is completely stupid (Score:4, Informative)
Re:Interesting stuff... from an author's view. (Score:4, Insightful)
You keep repeating this mantra:
Please listen carefully to what I am about to tell you.
I have an important announcement to make.
There is no such thing as "making available" in the Copyright Act.
So why on earth would there be cases that discuss what is or isn't "making available"?
Didn't you read the briefs? Didn't you read the argument, especially the part where the Judge points out to the RIAA lawyer that there's no such thing as "making available" in the Copyright Act?
Don't you know that the only litigant anyone has ever seen that thinks that merely "making available" is a copyright infringement is the RIAA?