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Is "Making Available" Copyright Infringement? 320

Posted by kdawson
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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Is "Making Available" Copyright Infringement?

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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?
      • 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.

      • 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?

        Sure, whatever works.

        I'm sure I'll butcher this quote, but it goes something like, "Show me a man who's lived 30 years and I'll find a crime for you to hang him by". --- some dead
      • I don't have a definition for you, but here are several analogies (OH NOOOS!)

        If I had a teenage daughter and I kept a bowl of condoms on the coffee table, I would not be distributing them, but I would be making them available. If one of her friends took one home and the police were called (not sure why the police might be called, but just go with it...) I could (theoretically) be charged with 'making available' but not distributing them.

        Given that mindset, then the answer to your questions are Yes.

        If you di
        • 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.

    • by sgt scrub (869860)
      I don't think there is anything slippery about it. The people who buy media share it via computers. Computers are connected to other computers. Computers and the lines connecting to the computers are connected to the power grid. The power grid is used by the companies that sell media. The media companies give money to the power company. The money that is given to the power company allows the power company the ability to make power available to the people that own the computers and the lines that connec
  • 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.
      • by xappax (876447)
        Libraries lend materials, files on the internet are copied.

        A lot of university libraries now provide "electronic documents", which are either emailed to you or made available via a URL when requested. These are electronic versions of copyrighted printed documents, and they're copied, or at least "made available" in a highly copyable format (like a web page) to anyone.

        Then again, they may have some special arrangement with certain copyright holders, which would explain why everything isn't available di
      • My county library makes books available for electronic checkout (essentially, a download). When you are done with the e-book, it's checked back into the library. This appears to be legal fair use in terms of copyright. My library also lends CDs and DVDs, however they have not - yet - made those available for electronic checkout due to the bandwidth considerations.

        Perhaps the solution to P2P is a software system that provides the same serial re-use? Of course people can copy them illegally, just as they
      • 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.

    • Didn't read the linked transcript, did you? :-)

      There is a whole bunch of discussion with the udge about a case where a library made copyrighted work available and got into trouble.

      There was more to it than just that, but still...
  • 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?
    • 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 ;)

    • 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

      • by Cylix (55374)
        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.
      • by multisync (218450)

        I know this is a bat-shit crazy analogy


        No car analogy is ever too bat-shit crazy 8^D
      • by Intron (870560)
        "Suppose I built a device that could duplicate any physical item given to it exactly."

        Wait a minute...

        This was a Twilight Zone episode.
    • 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...)
        • 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".

          The homeowner is required to transfer possession of the money to the police and await any claim the owner may make upon the property. To not do so is simple theft.

          The money certainly does not belong to the homeowner; it belonged, ostensibly, to the burglar. Just because somebody robs you doesn't give you a right to their property.
  • 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".
  • 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!
    • by gstoddart (321705)

      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) <terrymr@@@gmail...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.

  • 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)?
    • by garcia (6573)
      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.
  • 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
    • by jhfry (829244)
      I apologize for all of the terrible typos and whatnot in the parent... I was interrupted by my boss and had to send quickly.
    • According to the RIAA it doesn't even matter if you have no idea that it is happening, as long as you're the person that paid for the internet access account.

      (That's not copyright law, that's just a bully trying to write the law of the jungle.)

  • Let's break the word down. We have "copy" meaning to make a duplicate of and "right" meaning the creator retains some rights regarding who can make and distribute those copies. What could copyright possibly have to do with making a work available? Libraries make works available. Has nothing to do with copyright infringement. Likewise Google makes works available but it just points out where they are. Are we seriously entertaining the notion that a figurative card catalog is copyright infringement?

    I
    • Copy, in this context, doesn't mean "to duplicate".

      http://dictionary.reference.com/browse/copy [reference.com]

      1. an imitation, reproduction, or transcript of an original: a copy of a famous painting.
      2. one of the various examples or specimens of the same book, engraving, or the like.
      3. written matter intended to be reproduced in printed form: The editor sent the copy for the next issue to the printer.
      4. the text of a news story, advertisement, television commercial, etc., as distinguished from related visual ma
    • Agreed, the RIAA's theories have no resemblance to anything in copyright law.

      Note that Judge Karas pointed out to them that what they're asking him for appears nowhere in the Copyright Act.

    • by slcdb (317433)

      . What could copyright possibly have to do with making a work available? Libraries make works available. Has nothing to do with copyright infringement.

      The problem with this analogy is that libraries make works available for people to "check out". A work can be checked out from a library without anyone making any illegal copies.

      P2P file sharing software doesn't work that way. When you run Gnutella, or eDonkey (or whatever today's popular P2P copyright-infringing app is) you don't make works available for c

  • As a possibly useful analogy, something you can download from a web site is subject to export restrictions (http://www.bis.doc.gov/licensing/exportingbasics. htm [doc.gov]) whether it is actually downloaded or not. The analogy then is that making copies available over the internet is subject to copyright restrictions, whether copies are made or not.
  • The problem here is we are looking at vast areas of potential massive destruction in the economy. Sure, if you are interested in getting stuff for free, this is a great time to be alive. If you work for any company involved in the distribution - for profit - of materials that can be in digital form, you should be concerned. Concerned to the point of getting a different job.

    Let's say you work for a book publisher. Today it is impractical to redistribute a book that you buy in a book store. And books in
    • Sorry, but this sounds a lot like RIAA trolling to me. I notice that you have a history of putting up such posts.

      The purposes of the copyright laws are NOT vindicated by bringing frivolous cases based on junk science and no evidence. See amicus brief of American Civil Liberties Union, Public Citizen, Electronic Frontier Foundation, American Association of Law Libraries, and ACLU Foundation of Oklahoma in Capitol v. Foster [blogspot.com].

      If the big 4 record labels are unable to compete, their employees will lose their jo

  • Just read the whole darn set of arguments, and as an author I can argue this both ways, but I don't think either set of lawyers did a stellar job addressing the core issue.
    On the plaintiff side, they quote and quote and quote and quote -- but don't deal with the real issue which is that the RIAA et. al seem to say "if I tell you where something is located, I am guilty of copyright infringement because I am making it available". They mention child-pornography as relevant -- but conveniently ignore the fact t
    • by Abcd1234 (188840)
      On the piracy/law-breaking side though, let's say that someone knowingly "makes available" a copy of my work in a distributable manner that I did not authorize [AKA the Internet]. My belief is that they just infringed my copyright.

      Well, as another (wannabe) writer, I would argue that's not entirely correct. If someone makes my work available for download, they don't violate copyright until their software copies my work and sends it to someone else, thus actually performing the act of distribution. Up to t
    • by slcdb (317433)

      What if the quote was used within the concept of "fair use", but in a hyperlink to an illegal copy of the work, and the linking author didn't know that it wasn't a legal copy? Was the fair user guilty of copyright infringement because they inadvertently made my illegally copied work available?

      No, because linking to the copyrighted work does not constitute "making available". On the Web, something is made available at the point at which the work in question is put onto a web server where it can be accessed f

      • 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?

  • Is it shoplifting if you merely conceal that expensive jewelry in your purse and head for the exit or do you have to walk all the way out of the store first?
  • So, let's say I make 100 copies of a CD (ignoring the fact that doing this is already infringement), put them on a table outside the local grocery store and then walk away. Is this distribution? Or, do I need to actually go through the step of physically handing them to people?

    The answer is to the question posed in the OP is "Sometimes, making available is distribution." And, sometimes it's not. It turns on the specific facts of the case.

    If I had to make a call, I'd say that making it available through
  • While it is true that an appeal by the RIAA is likely if Ms. Barker's motion is granted, and the case is dismissed, the converse is not also true. If the dismissal motion is denied, the order denying it would not be an appealable order in federal practice, so Ms. Barker would be stuck with it until the case is finally concluded.

  • If it's the original work that you are making available, then no... of course not.

    If what one is making available is a copy of the original work, then it's not copyright infringement to make it available if you had permission from the copyright holder to make copies for non-personal use, and if there were any constraints imposed on the number and form of copies permitted, then those constraints must be adhered to as well. Note that in some cases, infringement may be considered to have occurred as soon as

  • When Limewire is installed, sharing of one's iTunes library is active by default. This can't be turned off without starting up the program and thereby "making available" any copyrighted music in the iTunes library. I didn't notice this until an upload of my music had begun, making me culpable as a copyright infringer. Rather than being a problem just with Limewire, this illustrates how dangerous the "making available" extension of copyright would be. Simply showing one's files to the world by means of soft
  • Several people posting here have made the point that libraries are proof that "making available" does not infringe on copyright. Many here might not know that libraries and publishers have historically had an uneasy relationship, but let's leave that for next. Libraries do not (by and large) "copy" material. They buy a legal copy and distribute it more than once. It's the same copy read by many readers. That's not quite the same thing as making a full copy and winding up with two copies instead of one.
  • IF I were to take porn and alcohol and leave it sitting in a high school every day, would I be arrested for contributing to the delinquency of minors? I don't know who picked up the stuff (if anyone), all I know is I leave it someplace and the next day it is gone. I think I would get busted in a heartbeat for that. So why should this be different. Assuming they are referring to people who make files available on purpose (and this is a big distinction), the intent is clearly to distribute files they don'

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