RIAA's "Making Available" Theory Is Tested

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."

you want to stop by

[ookabooka]

Open to public? Public? Want to stop by? Check this out: http://maps.google.com/maps?daddr=Quarropas+St,+Wh ite+Plains,+NY&geocode=&saddr=&f=d&hl=en&sll=41.02 9449,-73.768966&sspn=0.00968,0.020084&ie=UTF8&ll=4 1.027248,-73.765168&spn=0.01936,0.040169&z=15&om=1 [google.com]

As much as i hate the RIAA....

[timmarhy]

.. I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Unsecured wireless

[Ethanol-fueled]

What if I have media in a shared folder while I am using my own unsecured wireless network which I believe nobody else is using?

Re:As much as i hate the RIAA....

[timmarhy]

well, that's a different kettle of fish right there - if they can't show you were sharing anything, then your not a party to any kind of crime.

To be shown guilty the RIAA would need to prove they could download the files from you without breaking the law themselfs. My point was that there is no situation where sharing infringing files can be legal. your car in front of the bank might not be used for a robbery, so of course you shouldn't be arrested (thank you captain obvious).

Sharing *is* legal

[wurp]

Why do I have to keep repeating myself [slashdot.org]?

In the United States, you have every right [cornell.edu] to get together with friends and make copies of music on analog tape, or digital copies of music using digital audio recording equipment. This is per the Audio Home Recording Act of 1992 [wikipedia.org].

I'm not sure what this means about copying a CD someone else bought to a tape, but copying a CD for a friend using digital audio equipment and audio cds is perfectly legal, and copying an audio tape to another audio tape is also legal. We pay a "tax" to the RIAA on every piece of digital audio equipment, audio CD, and audio tape to allow this.

Re:As much as i hate the RIAA....

[Kjella]

I don't think anyone has successfully used that defense, I'd love to see a case file. US law is extremely fuzzy on the subject (it'd have to go under fair use) but pretty much every country that's made it explicit has made it clear that fair use copies must come from your own copy (or legitimately recieved broadcast in case of TV/radio). So the courts might actually rule that you are entitled to rip your own CD but not to copy Bob's rip, even though the result is identical. Certainly if Bob's CD is pirated (1:1 copy) then that taint would stick with any copies made from it.

Legality is not a property of the bits themselves, it all about how you acquired them. So you can't simply take one case "I rip my own CD" and extrapolate that any other case which leads to the same result "I copy Bob's rip of his legal CD", "I borrow Bob's CD and make my own rip", "I download it off P2P with upload disabled" or "I copy Bob's pirated rip" are legitimate, even though the bits are 100% identical. To us working with computers that's absurd - if two files match bit for bit they're the same, equivalent in every way and it doesn't matter if you got them by http, ftp, nntp, dcc or torrent. To the law they can be as different as night and day.

Re:As much as i hate the RIAA....

[Kjella]

I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up

Distribution is an exclusive right of the copyright holder. Distribution to someone who already has a copy is still distribution, and their possession of a copy or not has no relevance on that. Nobody's contesting that illegal distribution happens when an illegal copy is made. The only two arguments have been 1) sharing does not imply that anyone actually copied it, so it doesn't implicate infringement and 2) distribution happens at the client's request, thus the client is liable not the sharer. That disclaimer would have just as much effect as the Internet Privacy Act [snopes.com].

Re:Does this mean....

[Opportunist]

Depends actually on the country. If I leave my car unlocked, with the keys in plain view inside, and someone takes my car for a joyride and causes an accident, I'm liable because I was careless.

Of course, this does not apply to the internet. Car analogies are rarely really good.

What is "distribution" under the Copyright Act?

[NewYorkCountryLawyer]

I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.

The RIAA is relying on an alleged infringement of the "distribution" right.

But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief [ilrweb.com] (pdf), esp. pages 3-4.

Re:As much as i hate the RIAA....

[Anonymous Coward]

Obviously I'm stretching things and that's not what's going on with P2P, but still, its theoretically possible for sharing to not violate copyright.

While it is quite counterintuitive (to me at least) to consider identical bits to be infringing or not depending on where or how you got them, that is exactly what was found in UMG v. MP3.com [wikipedia.org]. The judge ruled that mp3.com could not make their mp3s available to people, even if those had proven that they own a copy of the CD that those were ripped from.

Ultimately it comes down to the Judge

[DeanFox]

Googling the Judge, he seems to be well liked. He gives lectures at Law Schools and he vacated a $35,000 judgement against a defendant in another RIAA case (Santangelo) so the case could continue. If anything he seems to be "for the little guy". His average rating is 9.2 out of 10. Here's one comment:

Civil Litigation - Private
Comment #: 4118
Rating:8.6
Comments: A real pleasure. A smart, funny man who treats everyone with respect. If anything, a little too tolerant of pro se civil litigants. Straight shooter.

One the surface he appears to be a Judge who respects the public, has a passion for Law who doesn't automatically default to corporations. And, most importantly, he hasn't called the Internet a bunch of Tubes.

This may prove helpful.

-[d]-

Re:What is "distribution" under the Copyright Act?

[ameline]

Software patents are really nothing of the sort -- they are process patents. You patent the process that the software implements. Then they usually claim a computer running software that implements this process -- that's the Machine part that is allowed.

I expect that much of the /. crown will see me as part of the problem, as I have several of these sort of patents granted with several more applied for.

Re:As much as i hate the RIAA....

[analog_line]

Your comment displays a fundamental ignorance of copyright law in the United States.

One person copying a song to MP3 format and giving it to someone who owns a CD that already has that song is illegal. You have infringed on the copyright owner's exclusive right to reproduce the copyrighted work in copies or phonorecords (unless you've received special permission because the author released it under the GPL, creative commons, or licensed you specifically).

http://www.copyright.gov/title17/92chap1.html#106 [copyright.gov]

106. Exclusive rights in copyrighted works

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

106A. Rights of certain authors to attribution and integrity

(a) Rights of Attribution and Integrity. -- Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art --

(1) shall have the right --

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right --

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

That means you do not have the right to give MP3 copies of music from a CD you own to someone who owns the same CD. You are infringing on those enumerated rights. Now, there are fair use exceptions, but if you actually read them (and you'll be able to in a second) you'll see that every one of them must be considered by a judge or jury to see if an individual's actions count as fair use.

http://www.copyright.gov/title17/92chap1.html#107 [copyright.gov]

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include --

(1) the purpose and character of the use, includin

Re:As much as i hate the RIAA....

[NewYorkCountryLawyer]

I hadn't considered this previously, but since distribution is the copyright holders right and no one else's, does that make the resale of CD's a civil (or even criminal) offence? After all its distribution. The answer is no (I'm sure the record companies would prefer it otherwise) but I am unclear as to why that is, and how that principal (which clearly violates the rights of the copyright owner in fact if not in spirit) can be applied to downloading music, films or books you already own a copy of.

17 USC 109(a) [cornell.edu]:

(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Read the Law

[NewYorkCountryLawyer]

There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3) [cornell.edu].

Re:Fair use?

[nosferatu1001]

Wrong, fair use does NOT require you to own the entire work to begin with, otherwise no research papers could be written.

think about what you write first, please.....