Did A Court Really Reject 'Making Available'? Sorta, But Not Quite...

from the not-quite... dept

Well, try to sort this one out. Slashdot, News.com and Ray Beckerman are all saying that the court in the Elektra vs. Barker case have dealt the RIAA a "setback" by rejecting the "make available" theory of copyright infringement. That sounds good, right? But hold on. The EFF (who filed an amicus brief against the "making available" claim), Billboard and ZeroPaid are all claiming a big RIAA victory in the decision. It would certainly appear that both claims are in complete contrast to one another.

The reality is somewhere in between -- but leaning very much (unfortunately) towards the RIAA's view of things. If you haven't been following the debate, the RIAA (and the MPAA) have been claiming that they can sue someone for copyright infringement if they put unauthorized files into a shared folder, i.e., making those files available to be shared. Others, such as the EFF, point out that in order to violate copyright law, you have to show that someone actually distributed the unauthorized file, otherwise, it's hard to see how they actually violated the law (i.e., no copy was made, thus no copyright violation). I find this latter argument more convincing, but it's certainly unsettled law. Courts have mostly split on the issue, with some deciding one way and others deciding the other. The RIAA likes to claim that this is settled law -- but it is not.

This latest case became a battleground over the issue, with both viewpoints getting a bunch of amicus briefs from third parties (including the Justice Department, who sided with the RIAA). It also took place in a court that is recognized as having a good grasp on copyright issues, meaning that it could weigh more heavily on other court decisions. So how did it actually play out when you have both sides claiming victory? Well, read the full confusing decision below to see:

What appears to have happened (and I'm no lawyer), is that the court was convinced that "publishing" and "distribution" are synonymous under the law. Thus, "publishing" content could be seen as "distribution." The EFF's response convincingly argues why this is wrong, but it's a bit late now. Thus, under that definition, if the court is convinced that putting a file into a shared folder is the equivalent of "publishing," then that could be a violation. However, the court hedges a bit, by saying that "making available" by itself is too broad and not clearly supported by the law (or the courts). So, as far as I can read it, it's saying that "publishing" is distribution, so the RIAA (or any other copyright holder) can get away with showing evidence of publishing. At the same time, it argues that merely "making available" isn't enough to be infringement, but if the copyright holder can convince the court that putting a file in a shared folder is the equivalent of "publishing" then that's good enough. So, yes, technically the court said making available isn't infringement, but it also expanded the definition of distribution such that it may just be a technicality that "making available" isn't infringement. This ruling pretty clearly leans towards the RIAA's belief in how copyright law should act.

Filed Under: copyright, distribution, elektra vs. barker, making available