RIAA's "Making Available" Theory Is Tested

NewYorkCountryLawyer writes "The RIAA's argument that merely 'making files available' is in and of itself a copyright infringement, argued in January in Elektra v. Barker (awaiting decision), is raging again, this time in a White Plains, New York, court in Warner v. Cassin. Ms. Cassin moved to dismiss the complaint; the RIAA countered by arguing that 'making available' on a p2p file sharing network is a violation of the distribution right in 17 USC 106(3). Ms. Cassin responded, pointing out the clear language of the statute, questioning the validity of the RIAA's authorities, and arguing that the Court's acceptance of the RIAA's theory would seriously impact the Internet. The case is scheduled for a conference on September 14th, at 10 AM (PDF), at the federal courthouse, 300 Quarropas Street, White Plains, New York, in the courtroom of Judge Stephen C. Robinson. The conference is open to the public."

Comments

you want to stop by

[ookabooka]

Open to public? Public? Want to stop by? Check this out: http://maps.google.com/maps?daddr=Quarropas+St,+Wh ite+Plains,+NY&geocode=&saddr=&f=d&hl=en&sll=41.02 9449,-73.768966&sspn=0.00968,0.020084&ie=UTF8&ll=4 1.027248,-73.765168&spn=0.01936,0.040169&z=15&om=1

As much as i hate the RIAA....

[timmarhy]

.. I believe they are correct here - enabling someone else to commit a crime is a crime in itself. And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.

Re:As much as i hate the RIAA....

[Jafafa Hots]

"However at no time is the sharing of material, which has a copyright notice on it clearly denying you permission to share, legal." Not necessarily. Think two people who each own the CD sharing a ripped copy because one is too stupid to rip their own and wants it on their ipod. Obviously I'm stretching things and that's not what's going on with P2P, but still, its theoretically possible for sharing to not violate copyright.

Re:As much as i hate the RIAA....

[Kjella]

I wonder if a disclaimer to the effect that you must own a copy of said recordings to download them would hold up

Distribution is an exclusive right of the copyright holder. Distribution to someone who already has a copy is still distribution, and their possession of a copy or not has no relevance on that. Nobody's contesting that illegal distribution happens when an illegal copy is made. The only two arguments have been 1) sharing does not imply that anyone actually copied it, so it doesn't implicate infringement and 2) distribution happens at the client's request, thus the client is liable not the sharer. That disclaimer would have just as much effect as the Internet Privacy Act.

Unsecured wireless

[Ethanol-fueled]

What if I have media in a shared folder while I am using my own unsecured wireless network which I believe nobody else is using?

Sharing *is* legal

[wurp]

Why do I have to keep repeating myself?

In the United States, you have every right to get together with friends and make copies of music on analog tape, or digital copies of music using digital audio recording equipment. This is per the Audio Home Recording Act of 1992.

I'm not sure what this means about copying a CD someone else bought to a tape, but copying a CD for a friend using digital audio equipment and audio cds is perfectly legal, and copying an audio tape to another audio tape is also legal. We pay a "tax" to the RIAA on every piece of digital audio equipment, audio CD, and audio tape to allow this.

What is "distribution" under the Copyright Act?

[NewYorkCountryLawyer]

I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.

The RIAA is relying on an alleged infringement of the "distribution" right.

But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief (pdf), esp. pages 3-4.

Ultimately it comes down to the Judge

[DeanFox]

Googling the Judge, he seems to be well liked. He gives lectures at Law Schools and he vacated a $35,000 judgement against a defendant in another RIAA case (Santangelo) so the case could continue. If anything he seems to be "for the little guy". His average rating is 9.2 out of 10. Here's one comment:

Civil Litigation - Private
Comment #: 4118
Rating:8.6
Comments: A real pleasure. A smart, funny man who treats everyone with respect. If anything, a little too tolerant of pro se civil litigants. Straight shooter.

One the surface he appears to be a Judge who respects the public, has a passion for Law who doesn't automatically default to corporations. And, most importantly, he hasn't called the Internet a bunch of Tubes.

This may prove helpful.

-[d]-

Read the Law

[NewYorkCountryLawyer]

There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3).