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).

Illegal to not report a crime?

[biocute]

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?

Knowingly and unknowingly?

[140Mandak262Jamuna]

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".

How does this affect other sources?

[Overzeetop]

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?

Re:Illegal to not report a crime?

[Ckwop]

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

Re:slippery slope

[CheeseTroll]

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!

Distribution versus "making available"

[PIPBoy3000]

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:Moot

[terrymr]

Third party or not he's doing this on behalf of the RIAA which means that it's as if the RIAA is doing it. The infringement does not exist because the RIAA can't infringe their own copyrights. Simply sharing the folder isn't infringement, the RIAA needs to provide some level of proof that a non-RIAA individual actually downloaded the file. Otherwise no copy has been made, copyright law deals in the right to copy.

Re:Interesting idea - definition of a library

[Chandon Seldon]

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.

Here's an interesting analogy to shoot down RIAA

[Anonymous Coward]

I've got an Ipod. Unfortunately, my car radio doesn't have any way to hook it into the stereo system. So I got one of those Ipod accessories, which will broadcast the current song on an FM channel.

Granted, this is a low-power broadcast. And perfectly legal according to the FCC. The problem is that according to the RIAA's legal arguments, I'm guilty of making the tune available. Goodness knows that someone else could come along, and listen to it on their radio. Or even record it.

It doesn't seem the FCC shares the RIAA's viewpoint, as they granted the manufacturer a license for doing such broadcasting. There is absolutely no way in the world that the FCC would grant a license to use the airwaves in order to facilitate piracy.

So, Mr. NewYorkCountryLawyer, you've apparently got the FCC on your side. This is a government sanctioned fair-use device.

Re:Slippery Slope

[anagama]

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 folder is sort of outside the question I was raising -- specifically, can you be liable for damage to another's property by virtue of computer negligence. Obviously, media content is "property" of the copyright holder yadda yadda yadda. I was thinking more about clogging up the "tubes", DDOS attacks, distribution point for infecting other computers -- stuff like that. As for copyright violation, can you have accidental piracy? I don't really know the copyright law enough to answer that.

I think if a "computer negligence" case was brought right now, the defense would have a lot of wiggle room because the definition of a "reasonable person" is difficult to pin down. I certainly don't think it would be a slam dunk case for the plaintiff, but by the same token, all media attention relating to exploits and how to protect your self may be raising the bar on what is reasonable behavior with a computer. Ten years from now, it may well be that the average level of awareness has gotten to the point that a person would not be acting like a "reasonable person" if he/she failed to maintain at least an anti-virus and firewall solution.

I know someone who has a computer that she 100% for certain, positively, definitely knows is p0wned and yet she doesn't disconnect it from the internet. Is that negligent behavior? Is there a foreseeable harm to others in that situation? Maybe. Eventually though, someone is going to get sued. I wonder if a home-owner's policy would cover the costs?

Re:Have to disagree here

[civilizedINTENSITY]

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...