Judge Says That Making Available Is Infringement... RIAA Pounces Immediately

from the one-step-backwards dept

Mon, Aug 27th 2007 1:37am — Mike Masnick

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.

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Filed Under: copyright, making available, riaa
Companies: riaa

37 Comments

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John, 27 Aug 2007 @ 3:14am

This is indeed a step in the wrong direction
This is nonsense. We've built our software on the making available of specific folders on your harddrive to specific friends, and 500,000+ users love the free service ( http://www.gigatribe.com ). What's the difference with doing that, and making copies of your front door key to a few friends? The latter isn't illegal, why would the digital equivalent be illegal? Who is the judge to decide whom (and how) people have the right to share their stuff with? In any case, they're going to have a hard time tracking down activity, as our service, and those of our competitors, encrypt all exchanges... and so the cat and mouse game continues...!
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But Seriously Folks, 27 Aug 2007 @ 4:04am

Devils Advocat
I hate to be pro-RIAA on anything, but you can be arrested for making heroine available on street corners. Whether you are selling it or giving it away, you get nailed.
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- Wolfger, 27 Aug 2007 @ 4:45am
  
  Re: Devils Advocat
  If digital music were a prohibited substance, then this would be a good analogy, and making digital music available would be illegal. Fortunately, digital music is perfectly legal. Copyright infringement is illegal, but there's more to copyright infringement than just having digital music on your hard drive in a shared directory.
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- imatek, 27 Aug 2007 @ 6:08am
  
  Re: Devils Advocat
  Ok Mr missed the Point
  
  You get arrested because it is illegal to possess it.
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- Alter_Fritz, 27 Aug 2007 @ 7:12am
  
  Re: Devils Advocat
  hey "But Seriously Folks" you are not the Alter Ego of "RIAA-Richard", are you?
  
  MR. GABRIEL: Just one point, your Honor, and I will stand up because it is a point that came up in rebuttal and not before. Mr. Beckerman argued that it is black letter law that our investigators downloading is not distribution.
  THE COURT: And you are not the public, right?
  MR. GABRIEL: He is just wrong. The cases deal with, say if you own the exclusive right you can't infringe. That means I can't sue my investigator. It has nothing to do with the defendant distributing. The cases don't say that it is not a distribution. The criminal law would fall apart in the drug world if you say you can't indict someone for distribution when the government's investigator is the one you sold to. I submit it is the same context.
  THE COURT: Well, I mean, you had me up until the last point because the difference is when -- the government isn't the copyright holder of drugs.
  MR. GABRIEL: No, that's right. But the point is --
  THE COURT: I mean, there is conspiracy theories out there, I know, but I am not going anywhere near that.
  MR. GABRIEL: That was just my analogy.
  THE COURT: I got you.
  MR. GABRIEL: But this Court understands.
  
  http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_070126OralArgument (iframe pdf!)
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The infamous Joe, 27 Aug 2007 @ 4:20am

Don't be silly.
I hate to be pro-RIAA on anything, but you can be arrested for making heroine available on street corners.

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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- Nasty Old Geezer, 27 Aug 2007 @ 4:42am
  
  Re: Don't be silly.
  Joe -- this is worse. We will have to immediately shut the libraries, since they are veritable hotbeds of 'availability'. Why, anyone can walk in and walk out with thousands of dollars of unprotected copyrighted material. Horrible, just horrible.
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  - sysadmn, 29 Aug 2007 @ 5:12am
    
    Re: Re: Don't be silly.
    Nasty Old Geezer -
    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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- Anonymous Coward, 27 Aug 2007 @ 6:02am
  
  Re: Don't be silly.
  I guess people really do not understand copy right infringement. Now if you purchased that music, and placed it on the corner no problem.
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inc, 27 Aug 2007 @ 4:23am

Ethics are so annoying. I avoid them on principle.
- Darby Conley
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ext1jdh, 27 Aug 2007 @ 4:52am

Go find a dictionary
A heroine is a female hero or protagonist

Heroin is an illegal substance produced from the opium poppy.
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- Nightwalker, 27 Aug 2007 @ 5:13am
  
  Re: Go find a dictionary
  I'm fairly certain that making a heroine available on street corners has some legal complications as well - Especially with high heels and a fairly revealing outfit.
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  - The infamous Joe, 27 Aug 2007 @ 5:33am
    
    Re: Re: Go find a dictionary
    Especially if she comes equipped with a Lasso of Truth.
    
    Forgive me for the typo, it was (and is) early. :)
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Anonymous Coward, 27 Aug 2007 @ 4:57am

Distribution vs Availability
While I seriously question whether "making available" qualifies as "distribution" a bigger question is whether what is "made available" is actually what it purports to be.

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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- chad, 27 Aug 2007 @ 10:01am
  
  Re: Distribution vs Availability
  Actually they likely can tell that it is infringement from the checksum that services provide to match different seeders. If the RIAA hasn't gone through the steps to create/investigate the checksums of the files they claim are infringing then I would say this argument would certainly come up in court. Lawyers get paid to try to snake their way through whatever, I'm sure it has occurred to more then one lawyer that just having something named "Britney Spears" does not mean that its infringement. There are thousands of documents in these cases that aren't in the news because the general public has no idea what an MD5, SHA1, CRC-32 etc are, nor do they care.
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Anonymous Coward, 27 Aug 2007 @ 6:31am

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.

And how is the RIAA suppose to do this without breaking and entering?
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- TriZz, 27 Aug 2007 @ 6:41am
  
  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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  - Anonymous Coward, 27 Aug 2007 @ 9:27am
    
    Re: Re:
    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?
    Absolutely. Just like using open wi-fi is stealing.
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    - TriZz, 28 Aug 2007 @ 8:59am
      
      Re: Re: Re:
      Just like using open wi-fi is stealing.
      
      ...it's DEFINITELY not stealing if the SSID is "Free Wi-Fi"
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Strofcon, 27 Aug 2007 @ 6:48am

I'm not much of a fan of the RIAA, but this sounds too liberal and slanted, even for me. I don't see the legitimacy in saying, "just because I put it out there for ANYONE to grab doesn't mean that I wanted to distribute it."

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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- The infamous Joe, 27 Aug 2007 @ 7:01am
  
  Re:
  I think the general point is being missed, here. No one is trying to show that distribution copyrighted material without the proper permission is illegal, we already know that it is. The law tells us so. What is under question is whether or not simply making it available constitutes "distribution".
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- Ater-Fritz, 27 Aug 2007 @ 7:31am
  
  Re:
  Strofcon, you might not see the legitimacy in saying, "just because I put it out there for ANYONE to grab doesn't mean that I wanted to distribute it.", but at least the RIAA has done that in the meantime (OK, it was some time ago, and not in defense of one of their "victims", but non the less; http://recordingindustryvspeople.blogspot.com/2006/02/riaa-admitted-in-november-2004.html
  
  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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RandomThoughts, 27 Aug 2007 @ 7:08am

If you are pulled over with 50 pounds of coke in your car, I am pretty sure you will be charged with possession with intent to distribute. Wouldn't putting something in a distribution folder be intent?
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- Anonymous Coward, 27 Aug 2007 @ 9:34am
  
  Re:
  Wouldn't putting something in a distribution folder be intent?
  Wanting to do something and actually doing it are two different things.
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Overcast, 27 Aug 2007 @ 7:11am

As long as some people continue to buy CD's, it will fuel their lust to sue more people.

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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Anonymous Coward, 27 Aug 2007 @ 7:14am

We need to think about those who don't actually know it's being made available to others. Some people have limited knowledge of computers and just barely know how to download the content. They may know that *may* be illegal (depending on what kind of content it is), but they may not know that the files being downloaded are being redistributed. Take file-sharing programs such as LimeWire; the downloaded files are automatically put in a shared folder, which the user may not know. They may think that's they are just downloading music and that's the end of it.
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R3d Jack, 27 Aug 2007 @ 7:54am

Wait a minute!
"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."
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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- chris (profile), 27 Aug 2007 @ 9:20am
  
  Re: Wait a minute!
  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.
  
  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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Charles Shoults, 27 Aug 2007 @ 8:06am

When does availability become distribution.
The setup:
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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norman619, 27 Aug 2007 @ 8:19am

Does discretion come into play?
A few years ago I used some P2P application to share some of my own artwork. I misconfigured the thing and it was sharing the wrong folder. A week later I got a notice from my ISP asking me to remove a file from my shared folder. Thanks to them I was made aware of my mistake and corrected it right away. Should I have been charged and reemed for unintentional distribution?
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mike allen, 27 Aug 2007 @ 9:15am

library
I think the library argument has some mileage in it after all anyone can walk in to a library and out withe the top40 albums . then rip the CDs to their computer and then place them on a P2P site. The question is how far are the IRAA going with this raid all the libraries for distributing copyright material after all they were the original suppliers.
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Music Lover, 27 Aug 2007 @ 11:36am

RE:I hate to be pro-RIAA on anything, but you can
Yes, but the product your talking about is illegal period, music is not. Here we are talking about a legal product, just the distrabution is what the question is about, not the product itself.

Bad analogy.......
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Evan Brown, 27 Aug 2007 @ 12:15pm

How amazing it is to see a post on Techdirt in which the importance of lawyers is emphasized, not denigrated!
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Woadan, 27 Aug 2007 @ 3:46pm

I wonder...
...if it would be a viable defense that you didn't want to share your files, but the software for doing so was installed on your machine, and the default installation makes all your folders available to all online?

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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BoredOfSuckyMusic, 27 Aug 2007 @ 7:10pm

Fake them out
Create some white noise mp3s with same name/size and md5 sum as some popular songs. Make your share folder/file permissions as "List" only for your user. They can list the files but can not download. You have not committed distribution! Have fun with those MFers in court.
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Anonymous Coward, 30 Aug 2007 @ 3:39pm

Linksys = "Free Wi-Fi" and
DLink = "Free Wi-Fi"
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john, 3 Sep 2007 @ 6:12am

Portions of the song
Lets not forget that file sharing through p2p breaks the file up, AND downloads from various sources at once... So perhaps i did make the song available, but only actually distributed 3 seconds of the song, did i distribute The song in its entirety ? and in order to collect a fine/fee, wouldnt everyone who contributed to that One count of infringement, Need to be present for them to claim a single count of infringement ?

John
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