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

Re:Consequences?

[NewYorkCountryLawyer]

This looks to be open and shut, so, does anyone know- If the judge is sane, and applies the law as he should, what sort of legal precedent will be set? A very good one.

Re:getting old

[russotto]

These stories are getting old. We've been hearing about stuff like this for years now. At some point there has to be a truce.

No, there doesn't. And it's like the middle east; if there is a truce, it will only be until one side sees an advantage in breaking it.

I'm not sure what the answer is, but perhaps it is time for the entire middle tier (the record labels) to get ripped out of the equation and for the RIAA to be dissolved.

That's a good idea, but that's not a truce; that's victory.

Re:Trying to break the law is not a crime.

[A beautiful mind]

He did more than just plan to break the law. He attempted to.

Attempting to break the law is not against the law, unless there is specifically a law that makes it a crime for you to attempt to break the law (and convict you even if you don't succeed).

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.

It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement

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.

Re:Trying to break the law is not a crime.

[Wonko the Sane]

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.