EFF Takes On RIAA "Making Available" Theory

NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."

Error Will Robinson, Error!

[fredNonesuch]

While I greatly appreciate your work in helping reign in yet another greedy monopoly abusing their powers, I have to post a correction to the original post. They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa. There have been numerous follow ups to the original assertion, including Techdirt, Gizmodo and Slashdot (noting the Gizmodo retraction) The RIAA has even clarified their position in a somewhat weasel worded quote. In essence, if you don't share, we (probably) don't care.

Trying to break the law is not a crime.

[riseoftheindividual]

Planning on breaking the law is not a crime. Actually breaking the law is what defines a crime. Granted, if you've planned on breaking some law and your planning constitutes conspiracy to commit a crime by definition of a law against conspiracy to commit a crime, then you've broken the law in so far as conspiracy is concerned, not as far as the actual crime you conspired to commit(unless you actually committed it).

Amicus Curiae

[Graham MacRobie]

Had to look it up myself...

amicus curiae [utcourts.gov] - A friend of the court; a nonparty who interposes, with the permission of the court, and volunteers information upon some matter before the court.

Re:Error Will Robinson, Error!

[NewYorkCountryLawyer]

I am aware of the 'controversy' but I disagree with you. You might want to read Wired.com's well researched discussion [blogspot.com] or my statement that Mr. Fisher was right and the Washington Post "correction" was wrong [blogspot.com].

Re:Bit off topic..

[kramer]

Trial courts don't set precedent. Courts only set precedent for courts of a lower level. Trial court is the lowest level, therefore trial courts don't set precedent.

There are a few minor variations to this general rule, but they don't really apply here.

Re:Thought crimes

[jotok]

This isn't the same as "contemplating" a crime.
The laws that govern the use of force by, e.g., law enforcement personnel and the military, in most (if not all) nations recognize the idea of "intent." There are clear markers for judging whether or not a reasonable person intends to do something hostile.

If you think all day of how you would like to blow up Congress, then you are guilty of nothing that can or should be prosecutable.
However, if you think all day of how you would like to blow up Congress, then acquire explosives and study blueprints to find out how to bring the building down...well, now you are actually on the road to making your thoughts a reality. If you are caught before the bomb goes off, you cannot use "This is thoughtcrime!" as an excuse. This is also why we have laws against "attempted murder" or "attempted rape" on the books.

Re:Consequences?

[morgan_greywolf]

The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it.

Oh, I think NewYorkCountryLawyer knows what he's talking about. You know how people say IANAL? Well, he doesn't say that because he is a lawyer. And one that has particularly been defending copyright infringement cases lately. This is a reading of existing law, not necessarily trying to establish a 'new law' via legal precedent (which, BTW, isn't all it's cracked up to be.)

Re:Consequences?

[DustyShadow]

Actually contributory and vicarious liability has full support in 17 USC 106 where it says it is unlawful "to do and to authorize any of the following"

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.

Furthermore, the legislative history supports this construction of the statute in which Congress stated: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."

In contrast, however, there is nothing in the statute or the legislative history that suggests that the making available should be infringement. It is one reading of the statute from a case in the 4th Circuit and the opinion itself was meant to be limited to libraries. (at least how I read it)

Is the game already up

[labnet]

A quote from the Economist

IN 2006 EMI, the world's fourth-biggest recorded-music company, invited some teenagers into its headquarters in London to talk to its top managers about their listening habits. At the end of the session the EMI bosses thanked them for their comments and told them to help themselves to a big pile of CDs sitting on a table. But none of the teens took any of the CDs, even though they were free. "That was the moment we realised the game was completely up," says a person who was there.

http://www.economist.com/research/articlesBySubject/displaystory.cfm?subjectid=1426230&story_id=10498664 [economist.com]

Re:Trying to break the law is not a crime.

[The Empiricist]

Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.

Sure you can. In the People v. Dlugash [delmarlearning.com], the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead). The court upheld the Legal Impossibility [wikipedia.org] defense: the defendant was not guilty of actual murder. But the defendant was not completely off the hook.

All this talk of crime may be beside the point because these suits are all civil in nature, not criminal (remember O.J. being acquitted for murder but being found liable for "wrongful death?"). The burden of proof [wikipedia.org] in civil cases is only a "preponderance of evidence," scales balanced between plaintiff and defendant, not the "beyond a reasonable doubt" requirement of criminal conviction, scales heavily tilted in favor of the defendant.

The judge might decide that the Howells have a defense based on the assertion that only the RIAA-authorized investigators downloaded the copyrighted materials. On the other hand, lets say that you drop off a really nice suit with the dry cleaners. You only authorize them to clean the suit. You think that they might be lending clothes out before they are picked up a la Seinfeld [wikipedia.org]. Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit. The dry cleaner does not know that you hired the private investigator. The dry cleaner takes the private investigator's offer, exchanging the suit (for a short period of time in exchange for some payment). You sue.

Would the judge deny relief to you because you had authorized the private investigator to make the offer?

Re:Car analogy!

[danaris]

So, you're saying that an undercover cop buying drugs is authorized to buy those drugs, so the person selling the drugs can't be prosecuted?

Selling drugs is illegal no matter who you're selling them to. The same is not true of copyrighted content.

Dan Aris

Re:Thought crimes

[Myopic]

Yes, you are correct, that's why downloading songs without paying for them isn't theft -- it's copyright infringement. The difference is just as you say -- you must deprive the original owner of enjoyment of the thing stolen. If I download a song from you, you can still enjoy the song, so it isn't theft, and people who claim it is theft are knowingly pushing lies. It isn't at all like stealing a car, in which case you could

And while we're on the topic, it also isn't theft to skip commercials, or to time-shift, or to place-shift, or to resell anything you own, or to loan anything you own. Furthermore, libraries doesn't facilitate theft. The entire concept is so totally wrong and bad for humanity - it's frustrating to hear such lame arguments made.

Re:Thought crimes

[Anonymous Coward]

here in Canada,... you are allowed to make a copy of virtually anything for personal, non-commercial use.

Perhaps you should check with a lawyer. I just skimmed the statue

http://www.cb-cda.gc.ca/info/act-e.html#rid-33389 [cb-cda.gc.ca]

and I see no such exception. In fact, the exceptions listed are very similar to the "fair use" examples in US law -- education, criticism, news reporting, and so on -- but there's no blanket "personal use" clause.

Key quotation from TFA

[Anonymous Coward]

In the words of the First Circuit,

Mere authorization of an infringing act is an insufficient basis for copyright
infringement. Infringement depends upon whether an infringing act, such as copying
or performing, has occurred. Therefore, to prove infringement, a claimant must
show "an infringing act after the authorization."

Re:Consequences?

[NewYorkCountryLawyer]

Oh, I think NewYorkCountryLawyer knows what he's talking about.

Thank you, Morgan. Of course I wasn't saying that the EFF has the power to make law.... I was saying that in my opinion the RIAA's creation of the 'making available' theory is not copyright law, and that in my opinion the EFF brief correctly states the law. (Of course anyone who's ever read the statute, or the caselaw, or the treatises... would agree with me.).

By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so. See "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case" [blogspot.com] and "RIAA Abandons "Making Available" in New Complaints Being Filed" [blogspot.com]

Re:Trying to break the law is not a crime.

[LeafOnTheWind]

As we already explained before - attempted murder is a special case. This is because of the nature of our criminal justice system - namely that each criminal offense has two sections: actus rea and mens rea. By shooting someone who she thought was alive, she fulfilled the mental part of the crime, mens rea. Now, because the law is defined as "attempted murder" it is literally punishing you for committing a possibly deadly act with the requisite mens rea. This is most unusual, as the actus rea in this case is largely dependent on the mens rea. In most other cases, they are separate - in copyright, for example. Copyright infringement is defined with a clear actus rea which the defendant in this case in no way fulfilled. Thus, unless I'm missing a technicality in the wording of the law, that would present this defendant as manifestly innocent.

Note: IANAL, I have only had a small amount of informal training.

It's a civil case, not a criminal one, right?

[DMCBOSTON]

Atlantic v Howell is a civil case, where plaintiff asserts a damage and wants compensation. A lot of talk here about thought crime and all, but that's not the case. The government is not charging them criminally. No one's going to jail, unless they start up debtor's prison. Note: IANAL, I just play one on the net. Unlike NYCL, who actually knows what he's talking about.

Re:Thought crimes

[aegisvirgae]

First you must understand what a conspiracy is. A conspiracy is generally an agreement with the intent to further a crime. If someone just placed an mp3 up in a place where it could be downloaded then it is still not conspiracy unless you can show there is an agreement. Generally, there must be at least more than one person for there to be a conspiracy. There must be some agreement, though in some jurisdictions it can be a feigned agreemnt ergo a cop agreeing to do a crime with a criminal while actually lacking a true intent, and thus conspiracy is not done in this fashion.

Historically, at the common law, a conspiracy didn't even have to be a crime. Conspiracy could be for anything immoral. In most modern jurisdictions this is rejected and you still have to have a crime.

I think the crime you are looking for is attempt. This may be attempted copyright infringement because he has gone beyond mere preparation for a crime and performed the last act necessary for it. There are many tests to determine attempt, but actually making it available could be construed as the same thing as an attempted infringement. Now, whether attempted infringement is a crime or not I can't speak to.