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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).
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...
Appended to the end of comments you post. 120 chars.
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?)
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?
Virtual Betting on Facebook for non-geeks.
I don't know if it is. However, it should not be.
The unconserved nature of information makes things get really absurd otherwise. The criminalization of reasonable actions across the board combined with making illegal any hardware/software that doesn't refuse to obey you and/or rat you out, and ultimately a huge gulf between what vendors offer and what consumers want.
The simpler solution is to just allow it and build new business models around the new technological landscape. In the long run it winds up working better for everyone.
No matter your opinion of copyright law transporting illegal goods is illegal, otherwise drug mules wouldn't be prosecuted. Is it the same? Of coarse not it's an extreme example. Say person "A" steals government secrets while person "B" transports information to person "C". By the law they are all at fault. It really doesn't matter how the information is transferred. Service providers aren't at fault because they aren't aware or involved directly in the specific transfer. I'm not going to weigh in on the right or wrong aspect of copyright but so long as the laws are what they are you can't provide copyrighted material without the permission of the copyright holder.
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".
sed -e 's/Chuck Norris/Rajnikant/g' joke > fact
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?
The theory of relativity doesn't work right in Arkansas.
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.)
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?
Is it just my observation, or are there way too many stupid people in the world?
If 'making available' is a violation is it illegal for me to loan a paperback to a friend ?
Is it a copyright violation to 'make available' if no copy is never actually made ?
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.
So if i build a building and someone photographs it, have I "made it available". If I display an artist's copywritten work in a lobby and the same thing happens, am I liable?
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
Technically it is not illegal to advertise your services as a hitman or drug dealer. It only becomes illegal either when money changes hands or the act is committed. However, there is usually a lesser charge of "intent" that you can get nailed with. "Making available" would probably fall under that category. I am not a legal expert, but I would imagine there have been "intent to infringe" laws on the books for a while.
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 (though I suppose this depends on exactly how you define "available").
From Merriam-Webster:
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?
Weaselmancer
rediculous.
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 unfettered access to their works
if that doesn't make sense to you as to why vaster rewards await those who jettison retarded copyright, then you just don't get it
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
There isn't even one new distribution technology that the media hasn't hated, lobbied against, and eventually tried to control. From VCRs to DAT tape and HD-DVD, they've always kept wanting more.
:( Hopefully, even if they do go this foolish route, they'll *at least* have to require something like actively encouraging people to copy the files. But I wouldn't count on it.
:-)
So I should hope that they don't believe that "making available" == "making copies" or we really will end up with things the way you describe
Oh well. I, for one, have lost all respect for copyright law already. They should just be glad I'm not a little younger and lot more foolish, or I'd be tempted to do something childish, like hack the RIAA's website with a picture of a hand giving them the finger and the words "COPY THIS!" under it
...is to encourage creation of new things, in literature and so on. It is not, necessarilly to make the creator rich. For example, the original copyright was issued to printers, so that they could print the Bible and be assured of some profit after all the labor was invested (with hand printing presses).
IMHO, the powers that be should try to BALANCE the so-called rights of the IP creator with the good of the public. The creator of the IP do not have inalienable rights. The creator has rights (that are granted by the powers that be), because it is in the best intrest of the public. The bottom line is that all such rights (copyright and patent) are granted because it is in the general public interest to do so. If a certain copyright or patent would not benefit the public, then it should not be granted.
Rubber Tires Never Break
The first "Ask Slashdot" was somewhat interesting. Now I'm tired of you. Don't you do any real work?
You know the law better than we do, and I'll bet you already know the answer. Libraries and Video Rental stores are all over the place. I'm guessing they're legal. If you lived in Canada, it's legal to have a "Shared Folder" accessible on the Internet. Does that constitute "making available?" I think you've deliberately asked the question in a vague way to promote pseudo-legal discussion, in much the same way that an artist plays their muse; at some point, something interesting appears. But it's all wrong and needs to be reworked by the "master". I, for one, don't think that's an appropriate way to create art. After all, it's the muse who came up with the original idea and the artist that gets paid for it.
So please, NewYorkCountyLawyer, don't make me start going through the articles in Firehose again to vote down your incessant questioning. Once should have been enough for you.
"Please describe the scientific nature of the 'whammy'" - Agent Scully
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?
If you want news from today, you have to come back tomorrow.
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... however my mother doesn't stand a chance... so can she get away with more than I can?
I think in the world of computing, it is not reasonable to expect a user to have a certain amount of knowledge, and without such knowledge there is a great potential for copyright violations do to simple ignorance. And what counts as irresponsible behavior? Is it irresponsible to download files from a p2p network? Not if your intent is to download free works... but then what happens if your client indexes all of the media on your system and makes it available to the public without your knowledge. I know better, but most users do not.
Sometimes the best solution is to stop wasting time looking for an easy solution.
I realize the RIAA is focused on people "making available" copyright works via P2P networks, but the legal implications are pretty profound.
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 understand people wanting to protect their copyrights. Despite some of the excesses that have arisen, copyright is a good thing. But this sort of lawsuit is just a waste of everyone's time, energy and money in addition to being a blatant power grab. I guess I shouldn't be amazed at how low some people will stoop for a dollar.
"Whichever way the ruling goes it will have a large impact across the Internet."
Perhaps this should have read,
"Whichever way the ruling goes it will have a large impact across the Internet - for those people living in the US"
Last I heard, the Inet is worldwide. Go figure.
If the courthouse has a copy machine and there is a copyrighted book next to it. Does that make the courthouse liable under the "Making Availible". After all anyone could start making copies.
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)
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.
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 digital form aren't generally sold or not sold without some kind of protection. This is likely to change. With today's attitudes about copying and even publishing, the big-name authors are likely to skip the book publishers completely. Unknown authors aren't going to have much of a chance except giving their stuff away on myspace. Better kiss that job at the publisher goodbye.
Oh, and the ad agency that the book publisher uses is going down the tubes as well. You see, individual authors aren't going to have the money to pay for advertising on the same scale. Any other services for the publisher are going to go down with them - ink, paper, financial services, managing the employee's 401K plan, and so on and so forth. Huge ripple effects.
Similar things will happen with music and movies. It is almost certainly too late to put the genie back in the bottle. We have almost a generation that believes respecting copyright is just somehow "wrong". And today, copyright is nothing more than a question of respect.
Yes, we are going to see battles like this, trying to enforce existing laws with stiffer and stiffer penalties. But the Internet is pretty much consequences-free. There might be a few people that get caught, but compare this to the millions or hundreds of millions of people that aren't getting caught. It will become like speeding where enforcement is on alternate Tuesdays for a quota and ignored the rest of the time. People get caught, but everyone speeds no matter what.
I think with the current trends we are likely to see more and more "enforcement" and less and less revenue. The "music business" is just about ready to throw in the towel - iTunes will still sell stuff to people that think that is the only way to put music in their iPod but the rest will just copy for free.
The question that needs to be asked is where will all those people work when Sony, EMI, BMG and others close their doors? We're not talking about "artists" but programmers, accountants and secretaries. The guy packing boxes in the shipping department. All of these people are going to be doing something else soon.
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 that to even own child-pornography under any circumstance is illegal, where owning music is legal -- but only if the music was obtained through legal means.
My take on this is based on the copyright's fair use doctrine -- as a copyrighted author I have the exclusive right to control everything about my work -- up to the point where someone has "fair use rights", such as quoting from my work in another study, etc. etc. [Instead of music, for example, let's assume it was a novel I wrote...] 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?
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. Suppose however, that someone ten or eleven links down the chain says "hey, there's this great story at ________________ and has no idea (from an indexed title, etc.) whether or not the available copy is legally authorized or not. Sort of like a book buyer who buys a book in good faith from a reputable seller, not knowing that it is a fourth or fifth generation illegal copy, reads it, sells it to another used book store, which is where I find it. Who infringed the copyright? the initial bookstore, the buyer, the buyer when he sold, the second used book store?
Nope. The person I can sue is the person who originally created the illegal copy, made it available for distribution, and then distributed it, or the person who originally and knowingly "bought" or accepted the illegal copy. But I have to show the point of origin, and with file sharing networks and the multiplicity of perfect copies, that is almost impossible to do. Which is where this whole thing gets muddied. Obviously the copyright has been infringed -- but without a single definable point of origin, a specific instance of illegal copying and publication (AKA making available), etc. there just doesn't seem to be a provable case.
Any thoughts?
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
If they find that "making available" violates the distribution rights of copyright laws, then we could be in big trouble, because ANYONE connected to the Internet can easily become a distributor simply by making a shared folder and dropping a few files in there. That means there could easily be millions and millions of people breaking the law for being illegal distributors.
That's somewhat like setting the freeway speed limit to 45mph when every driver on the freeway safely and easily drives at 65mph. Such a strict speed limit automatically classifies everyone as breaking the law.
Respect the laws of physics, for the laws of physics have no respect for you.
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?
Moderating "-1, Disagree" is simple censorship. Have the guts to post your opinion.
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 bittorrent is distribution, but just putting it on a shared folder is not (unless I expect others to copy from there.) At one level, they're both just ways of sharing files. But, a lot more people will see your bittorrent site than will see your shared folder.
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.
Ray Beckerman +5 Insightful
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 you make the copy, before you even make it available (ie, recording a movie with your camcorder or cell phone while in a theatre).
Now that said, bear in mind that computer files are almost always copies of something.
Draw your own conclusions.
File under 'M' for 'Manic ranting'
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 software that could also share them would make one a criminal.
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.
In meat-space, this is not cost effective. Even though you have a copy machine right there, to copy each page of a 300 page book at a dime a copy leaves you with 300 unbound pages which exceed 'fair use' guidelines. It's messy and slow, plus the "copy" is not of the same quality as the original. With digital copies, of course, everything changes.
With periodical articles, the issue is different because a typical article is easily copied for a few cents. In these cases libraries (are supposed to) go through the Copyright Clearance Center which collects a fee to be paid to the publisher for the use of that article. This is part of the Interlibrary Loan process, particularly in academic libraries. In the case of online articles that fee is incorporated into the annual fee libraries pay to aggregators such as Infotrac and Proquest. My library, for example, pays over $100,000 per year in annual access fees to online content. This content is then licensed to the residents of my county for their use. In this model, publishers get paid. Most publishers allow online access, but some of them license their work for "in library use only." Example: Some genealogy material that is also sold directly to the consumer, and car repair manuals.
Now, as to the uneasy relationship, publishers and authors have ALWAYS resented that libraries ae institutionalized enough to avoid royalties on "checking out" material more than once. Every once in awhile someone publishes the circulation statistics to shock authors when they do the math and figure they are owed a royalty for every check out. However, libraries are also responsible for so many sales to publishers that it doesn't make sense for publishers to push the issue. When large libraries buy "a" title, they buy several hundred copies. Libraries alone could put Harry Potter on the bestseller lists just on the copies they buy. Also, it is mostly libraries which are responsible for backlist sales for publishers after the public has forgotten they published the book. (And, incidentally, libraries do get bookstore discounts for most purchases, which hovers near 45% for trade books, maybe 10% at best for academic titles.)
The point has also been made that this copyright stuff is just for the USA. Right, and some places it gets even more interesting. As I understand it, Australia has a scheme known as the "public lending right" (Any Australians who know about this please jump in and clarify if I get it wrong!) There they figure out how many copies of books published in Australia are in libraries, perform some sort of calculation, and the government pays the publishers.
How about a moderation of -1 pedantic.
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.
Isn't linking to something 'making available' ? It seems like it would be, by definition. How the hell is that going to work? On the news section of here: http://documentaries.ws/ I import headlines from various rss feeds - I can understand how a wholesale copy and paste of an entire article might infringe copyright, but now will it be just linking too!? Is there no fair use?
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't have the rights to distribute. IF you purposely share something on the internet and allow users access to it, you are trying to distribute it. Just because you picked a crappy file no one wants doesn't mean you weren't distributing it. It just means no one took you up on your distribution. If I try and hand out flyers and no one takes one from me, I am still distributing flyers.
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
It was certainly decided is "making available" in the case of DeCSS, the DVD Content Scrambling System defeating program. Direct hyperlinks -- i.e. clickable links -- were ruled as part of distributing an illegal program, and web-site owners with such links on them were facing court action. Only non-clickable links -- here's your link in text, now type it in yourself -- were considered acceptable by this court. So yes, it has been established.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Excuse me, but are you claiming that the Bible was able to be copyrighted?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Sharing one's iTunes library is TOTALLY WORTHLESS. iTunes songs are encrypted with the FairPlay DRM system which has not been cracked. Having iTunes files on a machine not authorized for that particular song will not allow that song to be played. For more on how iTunes actually works, read this link.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
> 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"?
You're right insofar as they're trotting this out as an extension of existing law (i.e. it's not illegal, but they think it should be), but I could've sworn that they tried something similar in Grokster or another case against a P2P software maker? Although it may not have been decided on those grounds, I had thought that the Supreme Court felt that such things constituted some kind of indirect liability. In other words, that they were guilty not for actually making copies, but for helping someone else do it. I forget the legal term, though, and I'm no lawyer, so you might well know why it's not really the same argument.
That said, I *sincerely* hope they never manage to go anywhere with this. Once upon a time, there was this guy who did early hypertext experiments in Project Xanadu. Unfortunately, he thought that authors should have all sorts of crazy powers to retract things they'd said and control how other people could cite them. In other words, he was trying to make some kind of secure DRM system from the get-go (never mind that "secure DRM" is a complete oxymoron--you CANNOT give someone access and deny someone access at the same time, period). As might be expected, by trying to do the impossible, he totally, utterly failed (see rules 3, 9, 11 & 15 in particular for ridiculous bits). Don't misunderstand--he's still working on the project last I knew, but hardly anyone knows or cares about it any more.
The sad point of that is that, had he had sense enough to know that such controls are inherently impossible, we might have seen the web born sooner, and our technological development might have been faster. Oh, and he still has some good ideas, but the DRM-ish parts should've been abandoned long ago, as well as the royalties nonsense.
Linking to something that is in and of itself illegal, is not the same as linking to something legal, but protected by copyright.
The question of whether 2600 could link to DeCSS was not about copyright. It was about linking to something illegal.
We're talking about the legality of linking to, say, a Britney Spears song. Is a Britney Spears song illegal? No. Is child porn? Yes. Is linking to child porn illegal? You betcha. Is linking to Britney Spears? I'm sure you can guess the answer. What about DeCSS?
Do you see the difference?
Despite what EULAs say, most software is sold, not licensed.
Since most windows users are not tech-savy enough to do this it makes it a defacto crime to posses music which is not protected by DRM.
I've got an Ipod. Unfortunately, my car radio doesn't have any way to hook it into the stereo system. So I got one of those Ipod accessories, which will broadcast the current song on an FM channel.
Granted, this is a low-power broadcast. And perfectly legal according to the FCC. The problem is that according to the RIAA's legal arguments, I'm guilty of making the tune available. Goodness knows that someone else could come along, and listen to it on their radio. Or even record it.
It doesn't seem the FCC shares the RIAA's viewpoint, as they granted the manufacturer a license for doing such broadcasting. There is absolutely no way in the world that the FCC would grant a license to use the airwaves in order to facilitate piracy.
So, Mr. NewYorkCountryLawyer, you've apparently got the FCC on your side. This is a government sanctioned fair-use device.
Copyleft is a better idea. Not only will your work be free for others to share, but anyone who makes a derivative work must also allow others to share alike.
There is no right to feel safe thru security vaudeville at the expense of everyone's freedom, privacy and tax money.
No, but the "right" to print the Bible was granted by the government. see this
Because if I'm in my car and I put all the volume to my sound sytem then I'm making avaible the music to everyone!
So, everyone go and buy headphones... Oh wait, but you could share your headphones, ok then kill yourself ;-)
ghostbar page.
One user is trolling around trying to generate threads of discussion on what is "making available".
Please believe me that this is a nonsensical discussion. There are no cases on what is "making available" because there is no such thing as "making available" in the Copyright Act.
Ray Beckerman +5 Insightful
Unless you're among the majority of people who don't use the iTunes store and copy their songs off a CD.
I'm not sure in relation to that context, but in modern day translations sure are.
...so yes, it is.
From the New American Bible:
All rights reserved. No portion of this Bible, including all supplementary material, may be reproduced without written permission of the copyright holder.
Copyright, 1876 and 1871, by Devore & Sons, Inc. Whichita, Kansas 67201
Copyright, 1876 and 1871, by Catholic Bible Publishers Whichita, Kansas 67201
"Secondly, the way the Court resolves the issue could have a major effect all across the internet. If "making available" copyrighted works on the internet constitutes a "distribution" under the Copyright Act, even though no copies have been distributed, and there has been no sale, license, or other transfer, it means web sites and blogs can't provide links to each other or to anything else on the internet which is copyrighted, which includes almost everything on the internet."
I've been reading on the law, and the way most courts work is that they rule under the narrowest of scope when given a choice. One saw this in the issue of "theft" of intellectual property. This case and the judges ruling may only apply to a smaller subset. Also I think that "intent" may play an important role in this "making available" issue as well.
In the examples you give. e.g. blogs, websites at least one if not both (via logs) knows and approves of linking (making available). The issue as far as copyright is concerned is; is there a violation of copyright by one, or both. And was it willful?
Now I'm off to read the paper, but the issue of "making available", but "no copies distributed" has an issue. How did the RIAA know that the material in question was available in the first place? And if they were capable of knowing, was anyone else able. e.g. the public? In other words, how can one say that no copies were made to a resource that accessable to the public? Now if you're talking about being the middleman and intentionally linking to copyrighted material? I believe that has already been decided. e.g accessory to.
To all the people replying to this story. Your defense basically is; is ignorance a valid defense? Simple as that. Second even if one *assumes* you're a crimminal. That's only valid in the punishment phase. And that can range from "don't do that again" all the way to serious fines, and jail.
I doubt it. The RIAA has made it clear in their "Opposition to Motion to Dismiss Complaint" that they are alleging "downloading" and "distribution" in addition to "making available". It's therefore quite easy for the court to punt on the issue of "making available", and that's probably what they'll do. This will cause no impact across the Internet whatsoever.
I got fooled by the sensational story and headline, but this whole incident is really much ado about nothing.
How about those f%$#kers who blast their stereos out their car windows? or my neighbors downstairs? If anyone's making music freely-available *with intent*, it's these assholes.
What they want to do is prosecute people who post links that lead to places where you can download content.
In the analog world, this would be the equivalent of prosecuting someone for copywrite infringement who had written down on a notecard the street address of a black market bookstore where pirated editions of books were available.
While you may indeed wish to make such activity illegal, but it is by no means copyright infringement. You would need to make a new law outlawing what you actually did, not fudge the truth and say that you unlawfully copied something. If you valued truth over expediency.
The fact that the law is not clear on the term "making available" is irrelevant, since "making available" is semantically identical to "publishing" and there is a lot more clarity about when publishing is allowed or not.
Your analogy is flawed because cars are mostly NOT protected by copyright (only the manual(s) for it). Cars are protected by patents/trademarks.
His analogy is perfectly correct. The only reason cars are not copyrighted is that we don't currently have the technology to copy them (except, of course, to build an identical production line, for which patents and trademarks are sufficient protection).
Once we have inexpensive replication technology (whether it is nano+recipe or something a little more esoteric) and the ability to copy physical objects, copyright will be used to artificially maintain the scarcity our current economic models rely on. Whether that copyright is applied to the object (people do copyright buildings, making commercial photography of them without paying royalties for a license illegal. C.f the Eiffel tower in Paris as an example) or on the recipe will be immaterial, the end result will be artificial scarcity and deliberate as well as unnecessary impoverishment of the masses to support outdated business models and, perhaps, even outdated economic systems. Much like the entertainment industry is doing today.
The Future of Human Evolution: Autonomy
There are two right involved here, the distribution right and the copy right -- a copyright owner has, among other rights, the right to copy his work and the right to distribute his work. If somebody else does either of these things, that person has infringed the copyright. You do not need to copy a work to infringe it.
In any case, who "does the copying" is not as clear as you make it out to be. Your computer is certainly taking part in the copying process. Sure, it's only because somebody else told it to, but "he told me to do it" has never been a valid defense. Plus, in doing the transmission, your computer is making internal copies in memory and in buffers -- these might be enough of a copy to withstand the copyright act. (Personally, I don't think so, but it remains an open issue in copyright law.)
WTF? I don't think the original poster wasn't trying to a better job than the lawyers or you or anybody else. Seems to me like as an author he/she was saying that from an author's view the 'Net makes it bloody difficult to figure out when "making available" becomes "infringement" specifically because of the fair use doctrine in US copyright law.
Yes of course it is just like if I go out and leave my house unlocked and the door open I'm burgling myself even if it happens to be some other git who comes along and takes my entire CD collection and 77" TV
"Making available" deemed illegal; Government closes all libraries and universities.
Nothing to see here. Move along.
I think the court will sidestep the whole "making available" issue by looking deep enough into the cases cited to rule that, while "making available" may be infringement, it may also not be and the result depends on the facts of the particular case. Since it's a fact-based decision, the court can't decide it at this point and thus must refuse the request for summary judgment. That lets the court dispose of the motion without actually ruling in either direction.
If you want to get a ruling that "making available" isn't infringement, you're going to need a squeaky-clean defendant. It's going to seem to the court like letting the defendant get away on a technicality with something that seems like it shouldn't be allowed. The only way that's going to fly is if the defendant can prove they never downloaded anything they weren't authorized to and either that they never made anything available to others they weren't authorized to or that they had a reasonable belief that they weren't making anything available at all. And the only way you're going to get that kind of defendant into a position to request summary judgment on this point is if the *AA screw up by the numbers (which, sadly, is actually pretty likely given their track record).
So, for example, my local public library might not be allowed to lend music CDs, because that would be "making available" material for copying. Actually, I could xerox paper books, too, so those are obviously out as well.
Is an MP3 or OGG copy of a song a derived work?
Sounds like thoughtcrime to me.
"Yes, we know you didn't distribute the copyrighted material, but you were thinking about doing it!"
> 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?
What if you leave it parked in a flat street, without the emergency brake on. Someone else bumps into your car, pushing it into another parked car. Are you liable?
> 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?
What if you copy your own CDs for the car stereo, under fair use rights. You leave the copies in your car and leave the car unlocked - ie do not take the steps to protect the copied CDs. Someone passes by, opens your car and takes away the CDs. This transfer of the CDs is not covered by fair use rights. Are you thus liable for the damage (against the copyright holder)?
Think about it a moment.
Regards,
Marc
Commodities are easier. If you grow a pound of wheat, your potential customer knows what you have. You just have to advertise that you have it and then haggle for price with the customer. With creative stuff, you can't just put up a sign and say, 1 pound mental output from unknown thinker for sale to the highest bidder. No-one would ever pay for the output from an unknown.
That means that creative people have to give away their first creations (or sell very cheaply) Some even pay money in order to give them away. People pay for school where they create for free. Internships are often unpaid, and the intern has to pay their own room and board in order to take the unpaid job. A side effect of this can be that people from the lower socio-economic classes are effectively barred from these entry level positions, keeping them from attaining the next levels. (but that's another thesis)
Since creative people *must* give away their initial work, that means that there is a ton of free crap out there. Enter the music/ movie executives. Their contribution to society is to filter the crap and find the good stuff. It's easy to argue that they leave a lot of good stuff behind and let a lot of the crap through, but in theory, they're suppose to be filtering for the good stuff. The record/movie business makes a lot of money, and after any period of explosive growth, it starts to look inward and says "Hey, we're not growing as much anymore; let's apply more control to what we have." Never mind that the very business that they are in, creative output, started without control and can be killed by too much control, once there is enough money, the natural inclination of an executive is to control. Even though the execs swear up and down they are necessary to "promote' new acts, the very control they apply can stop the career of a relatively unknown artist, by not giving away enough of the artist's stuff to achieve critical mass in the marketplace. Once an artist has hit critical mass and beyond and everyone wants their stuff, that's when the execs really want the control, and they start saying to themselves, "Why didn't we control the artist's stuff from the very beginning?" and thus they start trying extreme controls on even the unknown artists that they are promoting, even though that same control might drive sales down.
To sum up:
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)