Is "Making Available" Copyright Infringement?

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).

Slippery Slope

[brian.gunderson]

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...

Library?

[nairb774]

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?)

Moot

[Sigma 7]

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:Library?

[gstoddart]

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

Re:Library?

[Maxo-Texas]

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.

Re:Moot

[amRadioHed]

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.

depends on the copyright agreement

[bug1]

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.

Re:Slippery Slope

[Tancred]

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?

Interesting idea - definition of a library

[Weaselmancer]

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:Library?

[east coast]

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:Moot

[terrymr]

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.

Re:Interesting idea - definition of a library

[drinkypoo]

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.

Re:Slippery Slope

[shark72]

"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:Lazy Lawyer

[Stanistani]

Sometimes you don't ask a question to find an answer...

Sometimes you ask a question to make people think about the issue [wikipedia.org].

Magical "Right of First Sale"

[VidEdit]

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.

Re:Interesting idea - definition of a library

[Anonymous Coward]

How is you reading/listening/watching something and copying it to YOUR memory that much different copying a file? Some people even "photographic" memories, and could probably duplicate what they read.

Re:Collapse?

[NewYorkCountryLawyer]

They would collapse.

In fact I'm not sure they aren't already collapsing, with just a few folks pushing back.

Re:Interesting stuff... from an author's view.

[NewYorkCountryLawyer]

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?

Re:Library?

[Chandon Seldon]

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:Interesting idea - definition of a library

[Chandon Seldon]

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 which functions of my electronic devices I am allowed to use seems absurd.

Re:Slippery Slope

[senatorpjt]

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.