Judge Says That Making Available Is Infringement... RIAA Pounces Immediately
from the one-step-backwards dept
One of the key points in the various lawsuits that the RIAA has filed against people for file sharing is whether or not the RIAA can prove actual copyright infringement. Many have argued that there needs to proof that an infringing file was actually distributed -- otherwise, there's no violation under copyright law, which requires "distribution." The RIAA, of course, feels that just making a file available is enough to be considered distribution. It's not a settled matter of law with some judges ruling that making available is not distributing, but others feel the other way. In the latest such case, a guy who was defending himself without a lawyer (generally not such a good idea) failed to convince a judge that making available wasn't distributing. Unfortunately, in not getting good representation, this ruling is now in the books, and the RIAA immediately used it to push other judges to rule the same way. Luckily, the defendants in those other cases do have lawyers, who are questioning the original ruling by pointing out that the guy didn't have a lawyer, the judge made incorrect references to other cases and that the judge never showed how making available qualifies as distribution under the law.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
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Filed Under: copyright, making available, riaa
Companies: riaa
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This is indeed a step in the wrong direction
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Devils Advocat
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Re: Devils Advocat
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Re: Devils Advocat
You get arrested because it is illegal to possess it.
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Re: Devils Advocat
http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_070126OralArgument (iframe pdf!)
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Don't be silly.
Oh come on now. Seriously? Heroine is *illegal* so, just having it is committing a crime. If *music* were similarly illegal, you *might* have a point, but it's not, so you don't.
What they're asking is that if I make a bunch of copies of my trusty Counting Crows CD and leave it on a street corner, am I in violation of copyrights? I didn't tell anyone to take the CDs, I didn't get money for them. I simply *made them available* to people. Much the same way you do when you share something on Kazaa (or whatever).
I'd say it isn't, but I'm biased. :)
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Re: Don't be silly.
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Re: Re: Don't be silly.
Gasp! It's worse than we feared. My library even has a device for making copies! They charge money to use it, so obviously they're making a profit from making copyrighted material available! Call the P(ublishing)IAA!
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Re: Don't be silly.
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- Darby Conley
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Go find a dictionary
Heroin is an illegal substance produced from the opium poppy.
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Re: Go find a dictionary
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Re: Re: Go find a dictionary
Forgive me for the typo, it was (and is) early. :)
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Distribution vs Availability
Most of what I have seen the RIAA basing their cases on looks like it is relying on a filename. If the actual content is what is copyrighted and not the name how can making something with the name be infringement? At least until it has been distributed. If the RIAA were to see the name and then download it to verify it they would then have the required distribution burden-of-proof AND they could actually identify whether it was what it claimed to be.
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Re: Distribution vs Availability
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And how is the RIAA suppose to do this without breaking and entering?
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Re:
And how is the RIAA suppose to do this without breaking and entering?
Are you serious? The RIAA may be breaking the law by downloading the song, but I seriously doubt that the RIAA's clients are going to press charges...
...acquiring freely available music online (whether legal or not) is not breaking and entering. They are making it available. If I place an old couch out front of my house with a sign that says "free couch", is it breaking and entering when someone comes and gets it?
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Re: Re:
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...it's DEFINITELY not stealing if the SSID is "Free Wi-Fi"
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Going to the drug example that several people have tried to use so far, consider Alaska. There is legislation that states (or at least, there was, as of a couple years ago. I've moved since then though) that it is perfectly legal to possess up to (I think) 2 oz. of marijuana. Perfectly legal substance at this point, so long as it remains in your house. If you carry it with you, or offer it to anyone else, or "make it available" in ANY fashion, you are to be charged with possession with intent to distribute (or however they word it.) Same idea though, as I see it. Feel free to comment though, I don't know everything. (Just close to it.)
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Re:
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Re:
Anyway, It doesn't matter after all if you can see it or not since "intention (wanting?) to distribute" isn't the same as actual distribution.
If you feel the urge to distribute something it isn't in violation to US copyrightlaw until you actually distribute "copies or phonorecords by means of sale rental or lease".
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Re:
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They are just simply at the turning of the tide.. and will do anything to justify their existence.
The thing is... Artists don't need an association now. They can produce, edit, market, and distribute their music on a much better playing field now than ever before.
The RIAA isn't worried about the consumers so much... they are worried that someday soon - likely very soon, their legions of doped up artists will realize this.
Like a couple have already.
So they are screaming for attention, telling the artists, 'You need us, you NEED us'.
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Wait a minute!
I'm not a lawyer, but I seem to recall that a ruling is not "law", only an appellate court decision. I find it difficult to believe that any judge would allow this ruling to carry any real weight, especially given the circumstances.
I think the "library" argument will prevail. The "making available" standard is so broad that it would make people culpable under ridiculous circumstances, such if they inadvertently exposed their music collection while intending to share other files.
One last thing: RIAA (verb that I don't permit myself to use)
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Re: Wait a minute!
in windows NT4, 2000, and XP professional, the root of every local partition is network accessible by default and is available to all members of the local administrators group by default. the share is called driveletter$ (C$, D$) and is not visible, but can be accessed directly via UNC path (\machine_namec$). go ahead, give it a try.
this means that if you have digital music on your computer (legally purchased or otherwise) and have no password set for the local administrator account (a very common situation) then the entire contents of your hard drive is available with to any machine on your local area network. compound that with an open wireless access point (also a common situation) and you have "intent to distribute" with absolutely knowledge that you are distributing.
also, if you do not have a firewall running, your hard drive could be accessible to a whole university netowrk or even the entire internet. again, "intent to distribute on a global scale" with absolutely no knowledge of your infringement.
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When does availability become distribution.
We all know that certain drugs and medications can be and are used to treat certain medical conditions. We have regulation to ensure that everything stays in check. If you buy a lifetime supply of Claritin-D and then start handing out samples, it's distribution whether you make money off of it or not. The same rules would apply whether you are physically present for the distribution or not. Imagine filling a vending machine with boxes of Claritin-D. The owner of the machine would get busted because Claritin-D is a regulated substance (at least in most states). If you set up a house where people come in, use your product and then leave, that can be called a Meth-Lab and is still an illegal practice.
The point:
In the world of digital music, when does availability become distribution? Old-school cassettes and and video tapes are prone to wear just by general use. DVDs and CDs are less susceptible to wear but are still picky about fingerprints and scratches. Anyone who has children can find an advantage to moving things out of the reach of fingers, so converting movies and music to a drive-based digital library is a very good thing. If you are the only person in the house but you want the same library to be available on three machines, does the RIAA consider it distribution? If you have 3 people in the house and 5-7 computers, does that constitute distribution or is distribution reached only when the media is taken outside the local network? Where is the limit?
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Does discretion come into play?
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library
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RE:I hate to be pro-RIAA on anything, but you can
Bad analogy.......
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I wonder...
Most software is set up to be fairly promiscuous. (As in, by default, everything is set so that everything is allowed.) You would have to go in and actually configure the settings in order to make it un-promiscuous.
So, if you wanted the P2P software for sharing files legitimately, and thought it would only be your photos from summer holiday that were available, but it made all available, and so someone was able to copy what you had no intention of making available, how would that play?
On the one hand, many users are potato spuds and don't do anything to configure software, so maybe they are responsible. But then again, whoever created the P2P software could be held liable for not making the default configuration completely closed off.
Just a thought...
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Fake them out
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DLink = "Free Wi-Fi"
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Portions of the song
John
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