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).

Comments

Slippery Slope

[brian.gunderson]

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...

Re:slippery slope

[CheeseTroll]

Not if you have the properly documented invoice readily available, proving that you paid for the privilege of viewing said copyrighted work. ;-)

Where it will really get tricky is if consumers begin to copyright our invoice copies, and charge the publisher for the right to view them.

Heck, I'll just copyright my own face while I'm at it. Stop looking at me!

Re:Slippery Slope

[Tancred]

Yeah...and I haven't heard a specific definition of "making available" yet. Is an inadvertantly shared Windows folder making its contents available? Is leaving my iPod unattended making available the music on it? Is not patching the latest remote security hole in my system fast enough making available everything on my hard drive?

Re:Slippery Slope

[shark72]

"Yeah...and I haven't heard a specific definition of "making available" yet. Is an inadvertantly shared Windows folder making its contents available? Is leaving my iPod unattended making available the music on it? Is not patching the latest remote security hole in my system fast enough making available everything on my hard drive?"

This is slippery sloping, but it's understandable. If I were defending this case, I'd try the same approach. But, to answer your questions: no, no, and no. This case regards making MP3 files available on a P2P network without authorization from the copyright holder. Negligence and intent play a big part here, and I think it will come down to whether it's reasonable that the defendant should have known better when they installed and used their P2P software for its advertised purpose.

It's often called the slippery slope fallacy because there's often the incorrect inference that A will definitely lead to B. I don't personally think that if the judge rules for the defendant, it automatically means that somebody who misplaces their iPod will be liable... but as I mentioned, if I were defending this case, I'd try to draw that inference.

Re:Slippery Slope

[senatorpjt]

Hey, if they can say that having more than an ounce of pot is "intent to distribute", then it stands to reason that having more than 10 songs is also, even if they're not shared.

Re:Slippery Slope

[anagama]

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.

Re:Slippery Slope

[cibyr]

But what if you leave your car unlocked with your malware-0wned but ripped-from-legit-CDs music filled laptop parked outside a public library connected to the free wifi with windows file sharing turned on? What then?

Re:Slippery Slope

[anagama]

The way this is answered is to ask whether a reasonable person in similar circumstances would have 1) protected the computer from being "malware-0wned" in the first place, 2) whether that person would have monitored the computer to ensure that if it is p0wned, it is removed from the net, 3) whether a reasonable person would have known the library offered free wifi, 4) whether it is reasonable to allow a computer to access open networks willy nilly.

Note, whether files were illicitly copied from an shared folder is sort of outside the question I was raising -- specifically, can you be liable for damage to another's property by virtue of computer negligence. Obviously, media content is "property" of the copyright holder yadda yadda yadda. I was thinking more about clogging up the "tubes", DDOS attacks, distribution point for infecting other computers -- stuff like that. As for copyright violation, can you have accidental piracy? I don't really know the copyright law enough to answer that.

I think if a "computer negligence" case was brought right now, the defense would have a lot of wiggle room because the definition of a "reasonable person" is difficult to pin down. I certainly don't think it would be a slam dunk case for the plaintiff, but by the same token, all media attention relating to exploits and how to protect your self may be raising the bar on what is reasonable behavior with a computer. Ten years from now, it may well be that the average level of awareness has gotten to the point that a person would not be acting like a "reasonable person" if he/she failed to maintain at least an anti-virus and firewall solution.

I know someone who has a computer that she 100% for certain, positively, definitely knows is p0wned and yet she doesn't disconnect it from the internet. Is that negligent behavior? Is there a foreseeable harm to others in that situation? Maybe. Eventually though, someone is going to get sued. I wonder if a home-owner's policy would cover the costs?

Re:Slippery Slope

[mrcubehead]

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.

Library?

[nairb774]

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?)

Re:Library?

[gstoddart]

Library usually count as an exception, and cannot be a useful example here...

Well, except that media/publishing companies have been trying to have libraries removed as an exception. It is, in fact, a perfectly useful example -- because if someone gets a law passed which doesn't grant an exemption to libraries, really bad things (tm) will happen.

The poster was pointing out how exactly a library could run afoul of such things if the corporations had their way.

Cheers

Re:Library?

[Maxo-Texas]

There is nothing magical about a library. They started as private citizens- not as government entities.

Hell, I could offer up my collection of PDF's as a library if you want.

This is about a fundamental extension of copyright law that would have prevented libraries if it had been present when they started.

Re:Library?

[east coast]

Libraries lend materials, files on the internet are copied.

Granted, plenty of people copy works from the libraries outside of fair use standards but that's not the intended use by the library.

This is probably the same reason the Zune "Squirt" (is that the right term for it?) thing is kinda winked on, it's not a permanent copy but rather a lending of materials.

Re:Library?

[Chandon Seldon]

Libraries lend materials, files on the internet are copied.

The distinction is significantly less relevant than you seem to think. Accessing a file on a computer makes at least one copy into RAM. Accessing a file across a network probably makes at least four copies: disk cache on sender, recipient RAM, recipient disk cache, recipient disk.

With computerized data, "making a copy" is just a natural thing that happens. Making it into a big deal is silly - this isn't a printing press where "making a copy" is hard work, with a computer everyone who has ever seen a file naturally has a copy of it. Yes - that means that selling computerized versions of books isn't going to work if libraries lend out computer files. Maybe that's ok - not everything has to be a new revenue source.

Illegal to not report a crime?

[biocute]

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?

Re:Illegal to not report a crime?

[denis-The-menace]

re: would the house owner be liable for copyright infringement?

Only if he runs off with the original and leaves you with a copy ;)

Re:Illegal to not report a crime?

[Ckwop]

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?

No, I would say it's more like this. Suppose I built a device that could duplicate any physical item given to it exactly. Further suppose that people started using this device to duplicate cars so they didn't have to pay buy one from a car dealer.

The car dealers, facing the total destruction of their business, decide to lobby Congress to pass laws that makes these duplication devices illegal. This, however, doesn't work. People are still making copies in the black-market.

So again, through the courts and congress they attempt to make putting a car in any public place a crime.

I know this is a bat-shit crazy analogy but to some extent that is because what the music industry is doing is bat-shit crazy.

What really hurts is that Congress and the RIAA have totally missed just how revolutionary the Internet is. You'd expect the RIAA to be blind to this because of their own vested interests but for Congress to so completely miss the point is unforgivable.

Simon

Knowingly and unknowingly?

[140Mandak262Jamuna]

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".

slippery slope

[User 956]

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?

Moot

[Sigma 7]

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.)

Re:Moot

[amRadioHed]

I'd say it's a little more than a technicality. If the RIAA can't be bothered to gather the appropriate evidence before raising allegations against someone then the case should be thrown out. The burden of evidence is on them to prove any wrongdoing was committed.

Re:Moot

[terrymr]

The problem for the RIAA is that their investigator can't download the song himself and then use that as an example of infringement because it is a legal impossibility to violate your own copyright. So the courts are being asked to find against somebody on the basis that somebody else probably downloaded the song. This is a poor standard of proof.

Re:Moot

[terrymr]

Third party or not he's doing this on behalf of the RIAA which means that it's as if the RIAA is doing it. The infringement does not exist because the RIAA can't infringe their own copyrights. Simply sharing the folder isn't infringement, the RIAA needs to provide some level of proof that a non-RIAA individual actually downloaded the file. Otherwise no copy has been made, copyright law deals in the right to copy.

Re:Moot

[terrymr]

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.

How does this affect other sources?

[Overzeetop]

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?

depends on the copyright agreement

[bug1]

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.

Interesting idea - definition of a library

[Weaselmancer]

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?

Re:Interesting idea - definition of a library

[drinkypoo]

Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?

Because in order to play it on your computer, you must make a copy, whereas the library lends you the copy, depriving them of their sole copy, and they lose if you do not return it. This is what the media companies want, so that libraries keep having to buy content.

Of course, it's also why they want to prevent you from making your legally protected backup copies for personal use.

Re:Interesting idea - definition of a library

[damium]

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.

Re:Interesting idea - definition of a library

[Chandon Seldon]

If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.

This, right here, is an absolutely key point. Using any sort of digitally stored data innately involves making copies of it. That means that either listening to CDs should be illegal, or that simply copying a file is something that people are allowed to do.

I have to say that I favor people being able to copy a file. In fact, the idea that some random "rights holder" who I don't even know can tell me which functions of my electronic devices I am allowed to use seems absurd.

Re:Interesting idea - definition of a library

[Chandon Seldon]

downloading Pirates of the Carribean and seeding it is not "helping educate others by sharing information." It's copyright infringement, plain and simple.

This belief that copyrighted material *has no intellectual value* is absurd. If it has no intellectual value, then obviously there's no reason to restrict copying it. If it has intellectual value, then obviously others benifit if you share it with them.

Further, just because some act of sharing would be copyright infringement *doesn't* mean that helping others by sharing information isn't a good thing. When your parents taught you that sharing was good they were right... some sharing just happens to be illegal now.

Re:Probably.

[Applekid]

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

Exactly. Why'd that hot secretary have to get so mad at me?

Distribution versus "making available"

[PIPBoy3000]

From the article:

As an example, they argued: "Companies routinely include in their Web pages hyperlinks that enable persons to navigate easily to other sites throughout the Web by use of browser software. Indeed, the Web is a collection of hyperlinks. Even though the use of hyperlinks makes content located elsewhere available to a Web user, it does not constitute a distribution of that content under section 106(3)." This would imply that Google "makes available" all sorts of things via a search engine. If it's illegal to make copyright content available, Google could be held liable for linking to the vast quantities of content available on the web. This could also mean things like reading a book in public where others could see the words, or listening to music in public where others could hear.

I realize the RIAA is focused on people "making available" copyright works via P2P networks, but the legal implications are pretty profound.

Re:Lazy Lawyer

[Stanistani]

Sometimes you don't ask a question to find an answer...

Sometimes you ask a question to make people think about the issue.

Re:man copyright is completely stupid

[NewYorkCountryLawyer]

That is in fact happening. See Creative Commons, FreeCulture, Free Software Foundation, etc.

Magical "Right of First Sale"

[VidEdit]

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.

Re:Collapse?

[NewYorkCountryLawyer]

They would collapse.

In fact I'm not sure they aren't already collapsing, with just a few folks pushing back.

Re:Interesting stuff... from an author's view.

[NewYorkCountryLawyer]

You keep repeating this mantra:

"I'm not aware of any ruling that has established that merely "linking to" equates with "making available".

Please listen carefully to what I am about to tell you.

I have an important announcement to make.

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"?

Didn't you read the briefs? Didn't you read the argument, especially the part where the Judge points out to the RIAA lawyer that there's no such thing as "making available" in the Copyright Act?

Don't you know that the only litigant anyone has ever seen that thinks that merely "making available" is a copyright infringement is the RIAA?

Re:Here's an interesting analogy to shoot down RIA

[Anonymous Coward]

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.

Re:Have to disagree here

[civilizedINTENSITY]

They are alleging "downloading", which they admit they can't prove. They are alleging "distribution", which they admit they can't prove. They can prove "making available", which the judge pointed out isn't against anything in the copyright law. Seems like this does mean something...