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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.
Government The Courts Media Music News
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."
[+] 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."
[+] 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.'"
[+] Your Rights Online: Judge Rejects RIAA 'Making Available' Theory 353 comments
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
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Is "Making Available" Copyright Infringement? 50 Comments More /

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  • Slippery Slope (Score:4, Insightful)

    by brian.gunderson (1012885) * on Tuesday February 27 2007, @03:31PM (#18171584) Journal
    Between this, and people being held liable for the actions of their neighbors using their open wi-fi networks, it makes me scared to think what will come next...

    • Re:Slippery Slope (Score:5, Insightful)

      by Tancred (3904) on Tuesday February 27 2007, @03:56PM (#18172020)
      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?

      • Distribution versus "making available" (Score:4, Interesting)

        by PIPBoy3000 (619296) on Tuesday February 27 2007, @04:17PM (#18172368)
        From the article:

        As an example, they argued: "Companies routinely include in their Web pages hyperlinks that enable persons to navigate easily to other sites throughout the Web by use of browser software. Indeed, the Web is a collection of hyperlinks. Even though the use of hyperlinks makes content located elsewhere available to a Web user, it does not constitute a distribution of that content under section 106(3)."
        This would imply that Google "makes available" all sorts of things via a search engine. If it's illegal to make copyright content available, Google could be held liable for linking to the vast quantities of content available on the web. This could also mean things like reading a book in public where others could see the words, or listening to music in public where others could hear.

        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)

        by shark72 (702619) on Tuesday February 27 2007, @04:31PM (#18172716)

        "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.

        • Re: (Score:3, Insightful)

          by senatorpjt (709879)
          Hey, if they can say that having more than an ounce of pot is "intent to distribute", then it stands to reason that having more than 10 songs is also, even if they're not shared.

        • Re: (Score:3, Informative)

          by anagama (611277)
          In the tradition of slashdot car analogies:

          If you leave your car parked on a hill in neutral without the emergency brake on, and it rolls down the hill and damages another car, are you liable? "Yes" because you negligently maintained your property.

          If you leave a computer unprotected on the internet, and never take steps to protect it, are you acting negligently and thus liable for the damage it causes? I'm not particularly advocating liability, but by the same token, it is hardly a strange concept to ho

          • Re: (Score:3, Funny)

            by cibyr (898667)
            But what if you leave your car unlocked with your malware-0wned but ripped-from-legit-CDs music filled laptop parked outside a public library connected to the free wifi with windows file sharing turned on? What then?

            • Re: (Score:3, Interesting)

              by anagama (611277)
              The way this is answered is to ask whether a reasonable person in similar circumstances would have 1) protected the computer from being "malware-0wned" in the first place, 2) whether that person would have monitored the computer to ensure that if it is p0wned, it is removed from the net, 3) whether a reasonable person would have known the library offered free wifi, 4) whether it is reasonable to allow a computer to access open networks willy nilly.

              Note, whether files were illicitly copied from an shared f

  • Library? (Score:5, Insightful)

    by nairb774 (728193) on Tuesday February 27 2007, @03:33PM (#18171606)
    Did anyone think of a library making copyrighted materials available? (Sure it is likely to be more detailed then that but in the same manner is this where we are going?)

    • Re:Library? (Score:5, Insightful)

      by east coast (590680) on Tuesday February 27 2007, @04:04PM (#18172144)
      Libraries lend materials, files on the internet are copied.

      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)

        by Chandon Seldon (43083) on Tuesday February 27 2007, @07:47PM (#18175660) Homepage

        Libraries lend materials, files on the internet are copied.

        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)

        by gstoddart (321705) on Tuesday February 27 2007, @03:45PM (#18171842) Homepage

        Library usually count as an exception, and cannot be a useful example here...

        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)

          by Weaselmancer (533834) on Tuesday February 27 2007, @04:01PM (#18172102)

          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?

          • Is it legal to operate a private (as opposed to public, i.e. government-run) library? I know the first libraries in America were private, but I don't think any exist nowadays...

                • Re:Interesting idea - definition of a library (Score:4, Interesting)

                  by Chandon Seldon (43083) on Tuesday February 27 2007, @07:56PM (#18175744) Homepage

                  downloading Pirates of the Carribean and seeding it is not "helping educate others by sharing information." It's copyright infringement, plain and simple.

                  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.

          • Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?

            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.

              • If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.

                This, right here, is an absolutely key point. Using any sort of digitally stored data innately involves making copies of it. That means that either listening to CDs should be illegal, or that simply copying a file is something that people are allowed to do.

                I have to say that I favor people being able to copy a file. In fact, the idea that some random "rights holder" who I don't even know can tell me

      • Re:Library? (Score:4, Insightful)

        by Maxo-Texas (864189) on Tuesday February 27 2007, @03:46PM (#18171864)
        There is nothing magical about a library. They started as private citizens- not as government entities.

        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)

          by VidEdit (703021) on Tuesday February 27 2007, @05:22PM (#18173614)
          There is something magical in libraries. It is called the "right of first sale" or "first purchase." This is the one and only thing that allows the libraries, used bookstores and used record stores. This basic tenet of American copyright law says that when you buy a physical copy of a copyrighted work you can do what you want with that copy without needing authorization from the copyright holder, including re-sell it.

          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)

    by biocute (936687) on Tuesday February 27 2007, @03:35PM (#18171650) Homepage
    If you intentionally make your assets unprotected, and when stolen, you don't report to the police and just get on with the life, would it be illegal?

    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)

      by denis-The-menace (471988) on Tuesday February 27 2007, @03:41PM (#18171766)
      re: would the house owner be liable for copyright infringement?

      Only if he runs off with the original and leaves you with a copy ;)

    • Re:Illegal to not report a crime? (Score:5, Interesting)

      by Ckwop (707653) * <Simon.Johnson@gmail.com> on Tuesday February 27 2007, @03:47PM (#18171886) Homepage

      If you intentionally make your assets unprotected, and when stolen, you don't report to the police and just get on with the life, would it be illegal?

      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

      • In your scenario...

        I immediately invest everything I have in these magical duplication machines.

        Next, I design a car that is made completely from crack.

        I set the device to loop and I'm a very very rich man.
    • 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?

      If the owner derives financial benefit from the infringement, then yes, the owner could be held responsible for contributory and vicarious infringement.

      http://digital-law-online.info/lpdi1.0/treatise14. html [digital-law-online.info]

      • So if the burglar steals copies of your CDs and money falls out of his pockets on the way out, the homeowner is said to have "derives financial benefit from the infringement".

        Now I know I'm being facetious but with the way the music mafia has been able to bend/buy laws to suit them, you never know.

        http://dictionary.reference.com/browse/facetious [reference.com]
        (In case a lone Digger visitor gets confused with grammar...)

  • Knowingly and unknowingly? (Score:3, Interesting)

    by 140Mandak262Jamuna (970587) on Tuesday February 27 2007, @03:39PM (#18171720) Journal
    If they rule "making available" some copyrighted work, even if it is done unbenown to the owner of the computer, well, whoever you are who gave a lift to the hitchhiker who was later found to be the serial killer, tremble in your feet. They are going to come after you with "aiding and abetting".

  • slippery slope (Score:5, Funny)

    by User 956 (568564) on Tuesday February 27 2007, @03:40PM (#18171738) Homepage
    NewYorkCountryLawyer updates us now that the legal issue -- is it copyright infringement merely to "make available" a copyrighted work?

    This of course, leading to 2011's legal dilemma: Is it copyright infringement to "view" a copyrighted work?

    • Re: (Score:3, Interesting)

      by CheeseTroll (696413)
      Not if you have the properly documented invoice readily available, proving that you paid for the privilege of viewing said copyrighted work. ;-)

      Where it will really get tricky is if consumers begin to copyright our invoice copies, and charge the publisher for the right to view them.

      Heck, I'll just copyright my own face while I'm at it. Stop looking at me!

    • This of course, leading to 2011's legal dilemma: Is it copyright infringement to "view" a copyrighted work?

      Only if you don't submit to the mandatory memory wipe which will prevent you from telling anyone else about it, or remembering the details of it.

      It also has the benefit that you don't realize you've paid to see Waterworld already 6 times, and that it sucked all of them. Think of the additional revenue stream they will have!! :-P

      "Man, what a crappy movie ... ZAP ... Hey, look, what's this Waterworld th

  • Moot (Score:3, Insightful)

    by Sigma 7 (266129) on Tuesday February 27 2007, @03:41PM (#18171756)
    If something is "made available", then distribution is only one step away. As you know, items that are "available" are easily obtained - and "evidence" of copyright violation can be done by downloading or obtaining the copies in question.

    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: (Score:2, Insightful)

      by amRadioHed (463061)
      I'd say it's a little more than a technicality. If the RIAA can't be bothered to gather the appropriate evidence before raising allegations against someone then the case should be thrown out. The burden of evidence is on them to prove any wrongdoing was committed.

    • Re:Moot (Score:4, Insightful)

      by terrymr (316118) <terrymrNO@SPAMgmail.com> on Tuesday February 27 2007, @04:08PM (#18172214)
      The problem for the RIAA is that their investigator can't download the song himself and then use that as an example of infringement because it is a legal impossibility to violate your own copyright. So the courts are being asked to find against somebody on the basis that somebody else probably downloaded the song. This is a poor standard of proof.

  • How does this affect other sources? (Score:5, Interesting)

    by Overzeetop (214511) on Tuesday February 27 2007, @03:44PM (#18171822) Journal
    Software exists for OCR from camera sources such as cell phones. Would the presence of, say, a bookstore which allows patrons to browse the shelves and - presumably - photograph the pages be liable under this expansion? What are the special circumstances for libraries, and could they be considered liable under this distribution interpretation?
    • How about this - the office of the student group I volunteer with has a photocopier that any of us can freely use. Similarly, we've got dozens of copyrighted magazines lying about (mostly Rolling Stone, since we do music stuff). By "making available" copyrighted material and a method of copying it, are we violating the law every time we don't have an advisor monitoring the office (about 12-16 hours a day, and all weekend)?
    • Software exists for OCR from camera sources such as cell phones.

      Yeah, it exists but it fucking sucks. Have you ever used the software that does OCR from images? If you haven't try something like gocr [gentoo-wiki.com] for Linux and tell me how it worked out for you. Even if the OCR software available for cell phone images is 100x better, it will still be pointless.

  • depends on the copyright agreement (Score:3, Insightful)

    by bug1 (96678) on Tuesday February 27 2007, @03:52PM (#18171960)
    Copyright gives the author exclusive rights over copying, they can attach other conditions (like money, only making 1 copy, not making it available) when they grant the rights to copy, but copyright is only supposed to be about copy rights... surprised ?

    If the copyright agreement doesnt mention "making availabile" then copyright cant prohibit it.

    But of course IANAL.
  • IANAL, but i would like a lawyer to tell me something:

    is it possible to create something, and append a disclaimer to the effect of "this work is not bound protected or has anything whatsoever to do with the incredibly insipid copyright laws of the united states"

    would that be legally binding?

    ip law is so out of touch with reality that it seems to me that the only way to move forward is for content creators to explicitly opt out of the antiquated system. they will of course, reap vaster rewards for having unf

  • Somewhere in the neighborhood of 20,000-25,000 suits have been brought to date, with hundreds of new complaints filed monthly.

    What would happen if those hundreds of new complaints filed monthly decided to fight? Could the RIAA handle the load? Or would they collapse under their own weight?

  • If my computer is connected to the internet, then I am making copyrighted works available... is there a level of effort required? If so, how do you quantify the level of effort necessary? So I go to court and say, I didn't know I was sharing Britney's new collection of crap, how will they determine if what I did was intentional or not. How do you differentiate intentional and unintentional release of copyrighted works. I could easily prevent others from accessing such works from the average hacker... how
    • Besides, what is the point of "making available" if not to distribute? You don't make something available if you don't intend to distribute it

      Exactly. Why'd that hot secretary have to get so mad at me?
    • This may be one of those fine-line cases. Making a work available in meatspace may not cross the line, on the web probably does, and doing so on using P2P software (for which the primary intent is mutual distribution of files) definietly does. Not that I think the law actually says that, just that the practical application suggests it. Sadly, laws are finite in scope and all have loophole between intent and application. Depending on the situation it may work for you or against you. Laws written for physical
    • The problem with your analogy, is that transporting copyrighted goods is not illegal, copying them without permission is. When you buy a book at the book store, they are handing you a copyrighted piece of work. They do not have the right to make copies of that work, but that is not what they are doing, they are transfering ownership of a copy which is perfectly legal under copyright law. To complete your analogy, person 'A' would have to be arrested before person 'B' picked up the material from person 'A

      • You keep repeating this mantra:

        "I'm not aware of any ruling that has established that merely "linking to" equates with "making available".

        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?

    • They are alleging "downloading", which they admit they can't prove. They are alleging "distribution", which they admit they can't prove. They can prove "making available", which the judge pointed out isn't against anything in the copyright law. Seems like this does mean something...

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