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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).
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.