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).

Slippery Slope

[brian.gunderson]

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

[Tancred]

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?

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:Slippery Slope

[shark72]

"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.

Re:

[shark72]

Not precisely -- lots of folks around here are concerned that if A happens (the judge finds for the plaintiff in the case of the P2P user), then B will happen (it will be illegal to lose your iPod, or libraries will be outlawed, or any number of other silly outcomes). B hasn't happened (and won't happen), so I think slippery slope is more appropriate than PHEPH.

Re:

[bill_mcgonigle]

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

Re:

[SillySlashdotName]

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:

[senatorpjt]

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.

Re:

[anagama]

In the tradition of slashdot car analogies:

If you leave your car parked on a hill in neutral without the emergency brake on, and it rolls down the hill and damages another car, are you liable? "Yes" because you negligently maintained your property.

If you leave a computer unprotected on the internet, and never take steps to protect it, are you acting negligently and thus liable for the damage it causes? I'm not particularly advocating liability, but by the same token, it is hardly a strange concept to ho

Re:

[cibyr]

But what if you leave your car unlocked with your malware-0wned but ripped-from-legit-CDs music filled laptop parked outside a public library connected to the free wifi with windows file sharing turned on? What then?

Re:

[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 f

Re:

[sgt scrub]

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?

[nairb774]

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?

[east coast]

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.

Re:

[xappax]

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

Re:

[macemoneta]

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?

[Chandon Seldon]

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.

Re:

[SillySlashdotName]

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...

Re:Library?

[gstoddart]

Library usually count as an exception, and cannot be a useful example here...

Well, except that media/publishing companies have been trying to have libraries removed as an exception. It is, in fact, a perfectly useful example -- because if someone gets a law passed which doesn't grant an exemption to libraries, really bad things (tm) will happen.

The poster was pointing out how exactly a library could run afoul of such things if the corporations had their way.

Cheers

Interesting idea - definition of a library

[Weaselmancer]

From Merriam-Webster: [m-w.com]

1 a : a place in which literary, musical, artistic, or reference materials (as books, manuscripts, recordings, or films) are kept for use but not for sale b : a collection of such materials

Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?

Re:

[mrchaotica]

Is it legal to operate a private (as opposed to public, i.e. government-run) library? I know the first libraries in America were private, but I don't think any exist nowadays...

Re:

[jc42]

Is it legal to operate a private (as opposed to public, i.e. government-run) library?

Hmmm ... I have a "home office" with a lot of bookcases filled with books. I sometimes loan a book to a friend. Am I running a private library?

For that matter, if someone (perhaps a guest in my home or a burglar) takes a book without my permission, can I be prosecuted for copyright infringement? How about if they don't take the book, but just make copies of a few pages on the Xerox machine in the corner, and take those c

Re:

[shark72]

"For that matter, if someone (perhaps a guest in my home or a burglar) takes a book without my permission, can I be prosecuted for copyright infringement? How about if they don't take the book, but just make copies of a few pages on the Xerox machine in the corner, and take those copies?"

I think you're being tripped up by the "unauthorized lending" you see on some copyright statements. I've never known it to apply to books. In other words, if you lend a book to a friend, or even if somebody takes one of

Re:

[BoberFett]

So those shelves filled with thousands upon thousands of fiction books are educational? If the test is "Is this materials educational" then almost every public library is committing copyright violations daily.

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.

Re:

[cliffski]

surely this is totally different. If someone borrows a book from you, you no longer have that book. That's perfectly ok. If the person who borrowed it loves it, they may buy their own copy when they return yours. That's perfectly cool.
The problem is when they copy the book. Now there are two copies but only one was paid for. That the situation that has got us to this point.(lawyers, DRM etc.)
I doubt many media companies or software companies are that bothered about people lending each other the odd DVD, boo

Re:

[e4g4]

Private schools and universities have their own libraries, and generally only allow access to them to their affiliates.

Re:Interesting idea - definition of a library

[drinkypoo]

Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?

Because in order to play it on your computer, you must make a copy, whereas the library lends you the copy, depriving them of their sole copy, and they lose if you do not return it. This is what the media companies want, so that libraries keep having to buy content.

Of course, it's also why they want to prevent you from making your legally protected backup copies for personal use.

Re:

[Laur]

Because in order to play it on your computer, you must make a copy, whereas the library lends you the copy, depriving them of their sole copy, and they lose if you do not return it.

If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.

Re:

[Chandon Seldon]

If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.

This, right here, is an absolutely key point. Using any sort of digitally stored data innately involves making copies of it. That means that either listening to CDs should be illegal, or that simply copying a file is something that people are allowed to do.

I have to say that I favor people being able to copy a file. In fact, the idea that some random "rights holder" who I don't even know can tell me

Re:

[swilver]

What if I remove the copy then after it was downloaded? I'm sure I can find some music I don't want anymore that I could delete after it was downloaded :)

Re:

[GeckoX]

Simply because at a library, there is a reasonable guarantee that only one person at a time will ever have access to any given resource. Further, for a resource to actually leave the library, it will be tracked.

Not saying that could not be done with a share folder, but there are a lot more problems in enforcing this.

Re:

[ArsenneLupin]

Not saying that could not be done with a share folder, but there are a lot more problems in enforcing this.

In aMule, you can set the max number of outgoing transfers (3, by default). If you set it to one, it would mean that no 2 people could download at once.

And netstat shows you who (which IP) is currently downloading (which is the same as many libraries do. Especially for controversial books, they only keep track as long as they are checked out, and destroy the records when they are back in).

Re:

[shark72]

"Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?"

I don't think it would pass the laugh test in a court. Using a P2P program requires duplication. Libraries do not -- they make copy machines available, but there's usually a sign warning you about copyright violation, and, of course, it's quite easy to use a copy machine for purposes that fall under fair use doctrine. Compare this to a P2P app -- if somebody else on the network has a share directory which i

Re:

[Oligonicella]

Because a friggin' folder doesn't preclude you from copying. Oh, wait, accessing the contents automatically copies them. Hmm. Not at all like a library. Mayhap that's the reason, it ain't the same.

Re:Library?

[Maxo-Texas]

There is nothing magical about a library. They started as private citizens- not as government entities.

Hell, I could offer up my collection of PDF's as a library if you want.

This is about a fundamental extension of copyright law that would have prevented libraries if it had been present when they started.

Re:

[sharp-bang]

There is nothing magical about a library. They started as private citizens- not as government entities.

Maybe, but now public libraries are chartered and have a specific mission. You are right that this would have prevented public libraries from ever forming, but now they are here and that fact can be taken into account in legislation. So in that sense, they are 'magical' in that they can be exempted.

Magical "Right of First Sale"

[VidEdit]

There is something magical in libraries. It is called the "right of first sale" or "first purchase." This is the one and only thing that allows the libraries, used bookstores and used record stores. This basic tenet of American copyright law says that when you buy a physical copy of a copyrighted work you can do what you want with that copy without needing authorization from the copyright holder, including re-sell it.

Without "first purchase," all libraries, used bookstores, used record stores, video rental stores, etc. would have to separately negotiate the right to lend, resell or rent each and every copyrighted work and pay royalties--and that's assuming they could even find the rights holders. There would be no libraries. The copyright industry doesn't like the secondary market that "first purchase" allows because it means that multiple people can enjoy a copy of a book or video. "First purchase" also interferes with their ability to create scarcity in the market which lets them raise prices. Currently the copyright industry is working on making your "first purchase" rights null by using DRM to make exercising your rights technologically impossible. For instance, legally you may have a right to re-sell a song you have purchased on iTunes (Apple has even admitted it to CNet) but they will not make it possible to transfer a song technologically.

Re:

[ArsenneLupin]

I don't think that's the kind of making available the article is talking about. A library still only hands you a physical copy that was created by an authorized copier.

But most libraries do make photocopiers available to their patrons. Even if they don't perform the copy themselves, they provide easy means to do so.

It's really the same thing with P2P. The actual copy only happens when a downloader does indeed store the works on his own hard disk (rather than listening to it immediately, when it is streamed from the source, and not keep a copy).

What's being argued is whether it's illegal to make a file you aren't authorized to copy available for upload to a P2P application. AFAIK anything in a shared folder is considered public so I'd assume this would fall under either a public performance or a broadcast, both of which require authorization by the copyright holder.

The thing here is that also the "uploader" made the files available, it's not he who decides whether an actual copy happens or

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?

Re:Illegal to not report a crime?

[denis-The-menace]

re: would the house owner be liable for copyright infringement?

Only if he runs off with the original and leaves you with a copy ;)

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:

[Cylix]

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.

Re:

[multisync]

I know this is a bat-shit crazy analogy

No car analogy is ever too bat-shit crazy 8^D

Re:

[Intron]

"Suppose I built a device that could duplicate any physical item given to it exactly."

Wait a minute...

This was a Twilight Zone episode.

Re:

[paeanblack]

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]

Re:

[denis-The-menace]

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...)

Re:

[paeanblack]

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.

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".

slippery slope

[User 956]

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:

[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!

Re:

[gstoddart]

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

[Sigma 7]

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:

[amRadioHed]

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

[terrymr]

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.

Re:

[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:Moot

[terrymr]

I'm not the only stupid one then : http://www.joegratz.net/archives/2005/09/02/p2p-de fendant-riaas-own-downloads-cant-prove-infringemen t/ [joegratz.net] - lawyers who know more about this than me use the same arguments.

Re:

[ArsenneLupin]

(that is, just download the file yourself)

But in that case, the copy would happen with your (the copyright holder's) permission, and would no longer be infringing. The copyright holder would still need to show that people other than himself or his agents made a copy. Not so simple...

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:

[ZachPruckowski]

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)?

Re:

[garcia]

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.

Re:

[Oligonicella]

Textbridge -- works like a champ.

depends on the copyright agreement

[bug1]

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.

Re:

[bug1]

Actually, it gives the copyright holder exclusive rights, the author/creator is originally the copyright holder, but ownership of the copyright can be transfered to say a publisher.

man copyright is completely stupid

[circletimessquare]

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

Re:

[PitaBred]

IANAL either, but I think that's called releasing your work to the public domain. It used to be quite common for most works to be public domain unless explicitly copyrighted, until copyright was amended to be automatically applied to everything [copyright.gov].

Re:man copyright is completely stupid

[NewYorkCountryLawyer]

That is in fact happening. See Creative Commons, FreeCulture, Free Software Foundation, etc.

Collapse?

[Frosty Piss]

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?

Re:

[NewYorkCountryLawyer]

They would collapse.

In fact I'm not sure they aren't already collapsing, with just a few folks pushing back.

Define "Make Available"

[jhfry]

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

Re:

[jhfry]

I apologize for all of the terrible typos and whatnot in the parent... I was interrupted by my boss and had to send quickly.

Re:

[NewYorkCountryLawyer]

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.)

What part of COPY is confusing?

[sjbe]

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

Re:

[thenextpresident]

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

Re:

[NewYorkCountryLawyer]

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.

Re:

[slcdb]

. 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

Analogy to Export Restrictions

[scruffy]

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.

Revolution... or revolutionary?

[cdrguru]

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

Re:

[NewYorkCountryLawyer]

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

Re:

[NewYorkCountryLawyer]

There is nothing remotely resembling "copyright piracy" in any of the cases the RIAA has brought against consumers. You are misusing the term.

Interesting stuff... from an author's view.

[CodeShark]

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

Re:

[Abcd1234]

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

Re:

[slcdb]

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

Re:Interesting stuff... from an author's view.

[NewYorkCountryLawyer]

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?

[Spazmania]

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?

Wrong was of drawing the line....

[cfulmer]

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

Appealable orders

[NewYorkCountryLawyer]

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.

Well...

[mark-t]

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

Limewire

[Darth Cider]

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

Libraries

[mschuyler]

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.

compare to real world

[dirk]

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'

Re:

[Applekid]

Besides, what is the point of "making available" if not to distribute? You don't make something available if you don't intend to distribute it

Exactly. Why'd that hot secretary have to get so mad at me?

Re:

[Overzeetop]

This may be one of those fine-line cases. Making a work available in meatspace may not cross the line, on the web probably does, and doing so on using P2P software (for which the primary intent is mutual distribution of files) definietly does. Not that I think the law actually says that, just that the practical application suggests it. Sadly, laws are finite in scope and all have loophole between intent and application. Depending on the situation it may work for you or against you. Laws written for physical

Re:

[Alchemar]

The problem with your analogy, is that transporting copyrighted goods is not illegal, copying them without permission is. When you buy a book at the book store, they are handing you a copyrighted piece of work. They do not have the right to make copies of that work, but that is not what they are doing, they are transfering ownership of a copy which is perfectly legal under copyright law. To complete your analogy, person 'A' would have to be arrested before person 'B' picked up the material from person 'A

Re:Lazy Lawyer

[Stanistani]

Sometimes you don't ask a question to find an answer...

Sometimes you ask a question to make people think about the issue [wikipedia.org].

Re:

[NewYorkCountryLawyer]

Thank you, Stanistani.

Re:

[NewYorkCountryLawyer]

This wasn't an "Ask Slashdot".

Judge Kenneth M. Karas is the one that is going to decide this one.

I was just providing the news that the 58-page transcript of the oral argument on this important issue is now available online.

If you're interested read it, if not don't read it.

The thing is, a lot of people are interested in it.

For one thing about 25,000 people have been sued by the RIAA for "making available", and hundreds more are being sued every month, so they and their lawyers are interested.

Secondly,

Re:

[NewYorkCountryLawyer]

Well yes, Graham, you are right that this was a rhetorical question, it's an issue for Judge Karas. And yes, this wasn't an "Ask Slashdot".

But I am always interested in Slashdot's collective wisdom.

When I got roasted after my Slashdot interview [slashdot.org], I left this comment, 'Twas Brillig [slashdot.org]:

Thank you all for the interview, and for the rough and tumble comment period which followed it. I really enjoyed it. It was incredible fun.

I've even learned an important new legal research method in the process. A lawyer can't j

Re:

[NewYorkCountryLawyer]

Yes in the RIAA's misguided view of things.

Re:

[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...