Slashdot Mirror
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."
Ray Beckerman +5 Insightful
Well, is it wrong to contemplate committing a crime and then not do it, or should the person be incarcerated same as if he actually did it?
Excuse me, but please get off my Pennisetum Clandestinum, eh!
You're already falling into a fallacy when you equate "infringing vs non-infringing" with "right vs wrong"
If you read through the brief, you get the sense that the EFF couldn't possibly care less about this particular defendant, and is much more worried about the (possibly far reaching) precedent that will be set as a result of this case - especially since the defendant is appearing before the court pro se.
It certainly does appear that attempted to. And indeed if that's what he was being charged with, then he probably would be found guilty (as well he should be I suppose). HOWEVER, he is not being charged with _attempted_ infringement; he is being charged with _actual_ infringement. The EFF is just saying that unless the RIAA can _prove_ that the infringement happened, the guy shouldn't be found guilty of infringement. Seems reasonable to me. If we need a law against "attempted copyright infringement" then so be it, but people shouldn't be ruled guilty of infringement just because we don't have one.
Copyright infringement is not a criminal offense for a good reason, that would get you automatically prosecuted. It is breaking the law only if a.) the act of copying takes place b.) it is not fair use c.) the copyright owner does not give you permission d.) the copyright owner sues you for it and wins the court case.
Again,the matter is not something that would get prosecuted automatically, nor should it be. If someone copies a song and the copyright owner never sues for it, in the eye of the law it is perfectly legal and deserves no punishment. There is a huge difference between a criminal case like attempted murder where even the attempt is prosecuted and between a copyright case where you're saying that it is ridiculous that an attempt is not prosecuted, which in order to realistically work would automatically mean making copyright infringement a criminal offense.
It takes a man to suffer ignorance and smile
Be yourself no matter what they say
Attempted murder is a crime because some legislature passed a law criminalizing it.
"attempted copyright infringement" is not a crime, because it does not violate any current law.
Just because it seems wrong to somebody does not make it a crime. Crimes are defined by laws, not your feelings.
RIAA is trying to say that ripping the CDs down to mp3s made them available for illegal distribution. Whether or not he actually shared them is immaterial to them, they are openning a new legal front with the act of ripping. Their theory is, he made them into mp3s with the sole intent to share them in violation of legal distribution, and that ripping them was in no way 'fair use'. Remember, these are the guys who claim 'fair use' means they get to make you pay and pay and pay for your music, even if you don't listen to it.
Understanding the scope of the problem is the first step on the path to true panic.
Why should it be illegal? Its opening up huge new legal opportunities for the government to decide to mess up again with technology. Hasn't anyone realized that whenever the government tries to do something involving technology it is us, the citizen that always, always, always loses? The DMCA, is just one example, and there are many others. Whats next, being thrown in jail for googleing a band name, or a software product because you were "looking for files to download"? Either you are a troll or can't look at the past and draw a conclusion. We need less copyright law and less law in general when it comes to technology, if the government stays out of the way problems solve themselves otherwise, expect to fight very very hard for the few freedoms we have left.
There is no "disagree" moderation, and troll, flamebait and overrated are not valid substitutes
The language of 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the "making available" of copyrighted works.
That is the EFF's argument.
The only evidence of "actual dissemination" of copyrighted works owned by Plaintiffs
consists of a hearsay account supplied by Plaintiffs' expert, Doug Jacobsen, relating information
gleaned from materials prepared by Plaintiffs' retained investigator, MediaSentry.
The trouble with this "evidence" of actual distribution is that it derives entirely from the
activities of Plaintiffs' own investigators. It is axiomatic that a copyright owner cannot infringe her
own copyright. See Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1348 (8th Cir. 1994). By the
same token, an authorized agent acting on behalf of a copyright owner also cannot infringe any
rights held by that owner. See Higgins v. Detroit Educ. Television Found., 4 F.Supp.2d 701, 705
(E.D. Mich.1998). Accordingly, where the only evidence of infringing distribution consists of
distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish
that other, unauthorized distributions have taken place.
Game over
That's incorrect. A trial court certainly may establish a precedent; it's just that the precedent would be influential, rather than binding. Influential effects of precedents are very common, in fact. For example, one appellate court might follow in the footsteps of another appellate court at the same level; courts in one state may look at the opinions of courts in another state as to similar laws; a state court might find that the interpretation of state law by a federal court is worth following; a court in one country might take guidance from a court in another country, and so on.
Frankly, people cite trial court opinions all the time. An appellate court opinion to the same effect is better, of course, but that doesn't mean that the former isn't a precedent.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
If this becomes a clear legal precedent, we may be facing legislation that imposes specific, severe penalties merely for "making available", and that would be an overall worse outcome. A bit of legal uncertainty may well be preferable, because it gives judges more leeway and limits severe penalties only to those cases that actually warrant them.
From my understanding of US law, somone has to be ruled guilty all the way to the top before the supreme court can come in and clear this up.
First, this is a civil matter, so the issue is whether or not the defendant is liable; guilt is not at issue.
Second, in the US system -- and I'm simplifying things here, a bit -- any party can appeal if things are not entirely to its liking, though in practice, it is usually one or the other. But for the US Supreme Court (as distinguished from the various state Supreme Courts), it can choose which cases decided below it wishes to hear, in order to make the most of its limited resources. IMO, this is not a question they would probably wish to spend time on unless there is a circuit split (i.e. various parallel appellate courts adopt different interpretations and the S.Ct. has to step in to set a single standard for everyone).
It is the binding precedents that differentiate the US system from those that at least in theory base it solely on the law.
No, we're in the English common law tradition, and most English-speaking countries do the same thing, AFAIK. Frankly, I've never understood how the civil law system you refer to can work on any reasonable basis. I guess it takes all kinds.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
The courts have repeatedly made it clear that 'authorizing' is not copyright infringement, that there has to be an underlying infringement of one of the rights.
Ray Beckerman +5 Insightful
The thing is that the *PERSON* who is making the unauthorized copy is the person doing the downloading.