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

[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?

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?

[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.

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

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?

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?

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.