EFF Takes On RIAA "Making Available" Theory 366
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."
Re:Consequences? (Score:5, Insightful)
Thought crimes (Score:4, Insightful)
Re:Is this a good thing? (Score:3, Insightful)
Re:Is this a good thing? (Score:2, Insightful)
Re:Thought crimes (Score:3, Insightful)
Re:getting old (Score:5, Insightful)
Re:Trying to break the law is not a crime. (Score:3, Insightful)
Re:Trying to break the law is not a crime. (Score:5, Insightful)
Copyright infringement is not a criminal offense for a good reason, that would get you automatically prosecuted. It is breaking the law only if a.) the act of copying takes place b.) it is not fair use c.) the copyright owner does not give you permission d.) the copyright owner sues you for it and wins the court case.
Again,the matter is not something that would get prosecuted automatically, nor should it be. If someone copies a song and the copyright owner never sues for it, in the eye of the law it is perfectly legal and deserves no punishment. There is a huge difference between a criminal case like attempted murder where even the attempt is prosecuted and between a copyright case where you're saying that it is ridiculous that an attempt is not prosecuted, which in order to realistically work would automatically mean making copyright infringement a criminal offense.
Re:Trying to break the law is not a crime. (Score:5, Insightful)
"attempted copyright infringement" is not a crime, because it does not violate any current law.
Just because it seems wrong to somebody does not make it a crime. Crimes are defined by laws, not your feelings.
Re:Is this a good thing? (Score:3, Insightful)
RIAA is trying to say that ripping the CDs down to mp3s made them available for illegal distribution. Whether or not he actually shared them is immaterial to them, they are openning a new legal front with the act of ripping. Their theory is, he made them into mp3s with the sole intent to share them in violation of legal distribution, and that ripping them was in no way 'fair use'. Remember, these are the guys who claim 'fair use' means they get to make you pay and pay and pay for your music, even if you don't listen to it.
Re:Trying to break the law is not a crime. (Score:3, Insightful)
Re:Oh please (Score:1, Insightful)
That is the EFF's argument.
The only evidence of "actual dissemination" of copyrighted works owned by Plaintiffs
consists of a hearsay account supplied by Plaintiffs' expert, Doug Jacobsen, relating information
gleaned from materials prepared by Plaintiffs' retained investigator, MediaSentry.
The trouble with this "evidence" of actual distribution is that it derives entirely from the
activities of Plaintiffs' own investigators. It is axiomatic that a copyright owner cannot infringe her
own copyright. See Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1348 (8th Cir. 1994). By the
same token, an authorized agent acting on behalf of a copyright owner also cannot infringe any
rights held by that owner. See Higgins v. Detroit Educ. Television Found., 4 F.Supp.2d 701, 705
(E.D. Mich.1998). Accordingly, where the only evidence of infringing distribution consists of
distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish
that other, unauthorized distributions have taken place.
Game over
Re:Thought crimes (Score:3, Insightful)
The uploads by the defendant took place in spite of any authorizations given to the downloaders by the RIAA, not because of them.
Re:Bit off topic.. (Score:4, Insightful)
Frankly, people cite trial court opinions all the time. An appellate court opinion to the same effect is better, of course, but that doesn't mean that the former isn't a precedent.
not necessarily (Score:3, Insightful)
Re:Bit off topic.. (Score:3, Insightful)
First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.
Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme Courts), it can choose which cases decided below it wishes to hear, in order to make the most of its limited resources. IMO, this is not a question they would probably wish to spend time on unless there is a circuit split (i.e. various parallel appellate courts adopt different interpretations and the S.Ct. has to step in to set a single standard for everyone).
It is the binding precedents that differentiate the US system from those that at least in theory base it solely on the law.
No, we're in the English common law tradition, and most English-speaking countries do the same thing, AFAIK. Frankly, I've never understood how the civil law system you refer to can work on any reasonable basis. I guess it takes all kinds.
Re:Consequences? (Score:4, Insightful)
Re:Trying to break the law is not a crime. (Score:3, Insightful)
The thing is that the *PERSON* who is making the unauthorized copy is the person doing the downloading.