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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."
>And like it or not, sharing copyrighted material IS a crime in the USA at this point in time.
So my torrent seed of Ubuntu (which is comprised almost entirely of copyrighted material) is illegal?
That is the claim you have made.
-fb Everything not expressly forbidden is now mandatory.
Cats can be rather intelligent. An analogy using the IQ of your cat might be putting the bar a bit too high...
As long as we're wishing, I'll go one better. The corporations should be forced to pay upfront for the plaintiff's defense if he can't afford a good one. If the corp wins, they win the court costs too. That way people can't be intimidated into folding even when they haven't done anything wrong.
Does a library "making available" books constitute copy violation too?
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The RIAA and MPAA regularly steal from the IP creators anyway: http://www.ornery.org/essays/warwatch/2003-09-07-
They really don't have a leg to stand on.
I don't think you've been keeping track. They're even more stupid than I think. Anyone who hires counsel who intimidate and threaten witnesses into giving false testimony, or who starts a p2p lawsuit against people who don't own a computer is actually falls outside my ability to conceptualise their stupidity.
It's been a long time.
I like this idea! And while we are at it, they have to match expenditures with the defendant's legal defence (I.E. both sides are allowed a maximum amount of legal funds on a scale which goes according to the damages being sought.)
We can all dream right?
- Toast
The problem is how do they know that they own the copyright to the files.
I have a mp3 file in my shared folder called rehab.mp3. This file is a copyrighted audio recording of my friend talking about rehab. RIAA using false pretext (and possibly violating the terms of use of the network) download this song. They check it and realize it is not the file they thought.
RIAA downloaded copyrighted material without the creator's permission.
I think I just figured out step 3.
1. Make audio recording
2. Put in shared folder
3. ????
4. Profit!
I have some songs on my HD. Ok. I may have bought them, or ripped them (which is still legal in some countries), or whatever other means there are to get them legally and on a HD.
Now, I'm a computer moron and have no idea what I'm doing. They are being shared through Windows' own system of making files available, SMB. They are incidentally "available" because they reside in a subfolder of "my folder", which is trivial to "share" in the network. Maybe there was even a good reason to do that for me, because there are other files in there, too, which I may share and I couldn't figure out how to share only those files and not the ones copyrighted.
"Making available"? When you go by the logic usually applied to carelessness concerning computers (i.e. "You're not liable for anything dumb you do with your computer when you're too stupid to know it"), it's not. Still, the difference to "making available" on a P2P network is a matter of protocol, it's not something different in a legal or factual sense. Sharing those files on P2P instead of SMB only means that a different application is responsible for the "making available" part, the rest is essentially the same. I grant access to the files to parties who I'm not allowed to share those files with.
What about trojans? Imagine I had a "P2P trojan" (and, bluntly, I'm surprised that something like this doesn't exist yet in wide spread). Said trojan would act as a relay for people who want to share certain content. Am I making it available? More important, is this suddenly the first trojan whose actions are blamed on the person infected by it?
What about insecure FTP servers? There are literally thousands if not millions of machines on the net that run a copy of some Windows Server version with IIS enabled that allow anonymous up- and download. I checked it once, it usually takes about 10 minutes before you become the drop point for someone who needs to spread files. Again the question, are you liable for it? Yes, common sense says you should be, but generally the creed stands that, if you're too stupid to know, you are off the hook.
So what is "making available"? Where is that line between "too dumb to know that you're sharing" and "knowing what you're doing and thus being liable"?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Cliffski, seriously, one of the definitions of "stealing" is "taking someone else's property". I don't happen to believe that copying a CD is taking someone's property, because the owner still has it. That's your own description isn't it?
Now the question is "who has the permission of who created it originally"? And what does "permission" mean in this case. I just copied the library's lovely recording of Georg Solti's performance of the opera Parsifal. Richard Wagner created Parsifal originally, and he's not around to give any permission, and I guarantee that he didn't give the Sony Conglomerate permission to make money off of his work.
The library still has their 4-CD set and I've got the music on my mp3 player.
The entire system of "intellectual property" is based on a fantasy designed to make people who have never created anything a way to get rich. As someone who "believes in such things", I say "fuck them". Let 'em work for a living like the rest of us.
You are welcome on my lawn.
- Ripping a CD you own.
If that's legal, what about this:- Buying a CD.
- Ripping the CD.
- Buying a new copy of the same CD.
- Selling the original.
Is the copy now legal? At every point, you owned the source material, as well as the copy. Your copy is no longer a copy of the version you own, but they are bitwise equivalent. Now, how about this:- Someone buys a CD and rips it.
- You give them your copy (their rip is now a legal copy of either original CD).
- They give you back your CD, and a copy of the rip.
At what point does it become illegal?I am TheRaven on Soylent News
A library makes books available for checkout. Most also contain copying machines.
This would consititute making available to be shared without at the same time involving the library in infringing copyright
If the RIAA wins this motion, it could theoretically mean that all libraries must remove access to their copy machines or be at risk of liablity for copyright infringement/violation
And ye shall know the truth, and the truth shall make you free.
John 8:32(King James Version)
Just how do you think the RIAA would react to THAT?
This space available.
OK, it is "possible" to make content available and copyright law broken if someone downloads it. It is also "possible" that no one would download it thus no copyright laws broken. Both are "possible" and have opposite rulings.
Now this is primarily just an academic exercise, but isn't a rip of a CD to MP3 files really just an approximation or translation, not an exact duplicate? Much of the hubbub I've read is the claim that the danger to the recording industry presented by digital music is that the possibility of "perfect" digital copies exists. That's why there's far less resistance to the act of recording something from the radio in an analog fashion -- the inherent flaws present in an analog recording.
So, at what point do we consider the degradation of recording to be sufficient to be tolerable? As a lossy method, MP3's are an inherently imperfect copy of the original, differentiated only by degree from an analog recording.
I know we're splitting hairs here, but I wanted to hear anybody else's thoughts along these lines.