EFF Takes On RIAA "Making Available" Theory

NewYorkCountryLawyer writes "In Atlantic v. Howell, the Phoenix, Arizona, case in which a defendant who has no legal representation has been battling the RIAA over its theory that merely 'making files available for distribution' is in and of itself a copyright infringement, Mr. Howell has received some help from an outside source. On the last day allowed for the filing of supplemental briefs, the Electronic Frontier Foundation filed an amicus curiae brief agreeing with Mr. Howell, and refuting the RIAA's motion for summary judgment. The brief (PDF), which is recommended reading for anyone who wants to know what US copyright law really says, points out that 'contrary to Plaintiffs' arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work.' This is the same case in which the RIAA claimed that Mr. Howell's MP3s, copied from his CDs, were themselves unlawful."

Comments

Error Will Robinson, Error!

[fredNonesuch]

While I greatly appreciate your work in helping reign in yet another greedy monopoly abusing their powers, I have to post a correction to the original post. They did NOT argue that someone ripping a copy of the CD to the computer was unauthorized - it was the placement of a copy in the share folder for Kazaa. There have been numerous follow ups to the original assertion, including Techdirt, Gizmodo and Slashdot (noting the Gizmodo retraction) The RIAA has even clarified their position in a somewhat weasel worded quote. In essence, if you don't share, we (probably) don't care.

Re:Error Will Robinson, Error!

[NewYorkCountryLawyer]

I am aware of the 'controversy' but I disagree with you. You might want to read Wired.com's well researched discussion or my statement that Mr. Fisher was right and the Washington Post "correction" was wrong.

Re:Consequences?

[morgan_greywolf]

The EFF's view isn't any more "what copyright law actually says" than the RIAA's until a judge rules on it.

Oh, I think NewYorkCountryLawyer knows what he's talking about. You know how people say IANAL? Well, he doesn't say that because he is a lawyer. And one that has particularly been defending copyright infringement cases lately. This is a reading of existing law, not necessarily trying to establish a 'new law' via legal precedent (which, BTW, isn't all it's cracked up to be.)

Re:Consequences?

[NewYorkCountryLawyer]

Oh, I think NewYorkCountryLawyer knows what he's talking about. Thank you, Morgan. Of course I wasn't saying that the EFF has the power to make law.... I was saying that in my opinion the RIAA's creation of the 'making available' theory is not copyright law, and that in my opinion the EFF brief correctly states the law. (Of course anyone who's ever read the statute, or the caselaw, or the treatises... would agree with me.).

By the way, the proof that even the RIAA lawyers know that their theory is baseless is that they have abandoned it and omitted it from all of the complaints they've filed during the past 5 months or so. See "RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case" and "RIAA Abandons "Making Available" in New Complaints Being Filed"