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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).
That is in fact happening. See Creative Commons, FreeCulture, Free Software Foundation, etc.
Ray Beckerman +5 Insightful
And that was argued in a copyright case. The claim was that copying a program to the memory on your computer could count as copyright violation. The courts ruled that copying a program to memory or to a hard disk was not copyright infringement when such use was necessary to the operation of the program.
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 hold people responsible for negligently using their property in a manner that damages another's.
I would note that liability for negligence is different from criminal prosecution (the AZ child-porn case comes to mind), or at least it ought to be in the sense that intent to commit the crime should play a vital role at least in this instance. Of course, bankrupting someone through damages might be just as bad as jail time. Anyway, I wouldn't be shocked if someday someone is held liable for the damage they enabled by negligently maintaining a computer.
What changed under Obama? Nothing Good
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/ - lawyers who know more about this than me use the same arguments.
The judge says in the notes "To the extent that they [the plaintiffs] allege distribution ... and they're claiming that either distribution includes actual distribution or making available for distribution, the question comes, Well, what does it mean? What does distribution mean?" I think the court will answer that copyright can be violated by making available with the intent to distribute, ie, it's all about the intention, that "making available" isn't enough in and of itself to be counted as distribution.