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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."
It is a good thing in that it is showing the true colors of the RIAA. Even though he might lose the case, its a battle lost but we could win the war. The more people realize that the RIAA is trying to attack us doing the simple act of ripping CDs to MP3s, Joe Sixpack might actually give a second thought if he really wants/needs to spend the $15 to get a new CD. It also could help when a senator/representative finds out that this is what the RIAA has been doing all along and those who actually knew about technology were right, they could take down the DMCA and other atrocious laws. This also might make bands less likely to join a record company that's part of the RIAA (because they are music listeners too) and also start labels breaking away from the RIAA because people won't buy DRMed songs and they don't believe that "piracy" is the same as ripping MP3s. If anything, this should give more evidence into persuading people that the RIAA truly is opposing our freedoms.
There is no "disagree" moderation, and troll, flamebait and overrated are not valid substitutes
But is anyone else worried about this guy going to bat without representation and possibly allowing precedent to be set by his actions? Is this considered by those who would consider later cases based upon the decisions that will be made in this one?
I'll believe in corporations having personhood when Texas executes one... - advocate_one
He did more than just plan to break the law. He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.
It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.
I can't say I'm 100% up to date on the current batch of p2p clients but with many of the earlier generation there were common issues of false advertising:
1. Mis-labeled song. Say it's something it's not.
2. Clients set to not allow downloads. A lot of the older clients would let you set the maximum number of downloads to 0. Your stuff would still end up indexed, but no one could download.
3. Host that were fire-walled off from letting people download. The communication for a lot of these networks isn't on one port from one host. So you can have clients advertising content that you can't actually get because of firewalls.
I'm not actually pro-copyright infringement, but a demonstration of advertised content being un-downloadable really swaying a jury. Or better yet I would love the RIAA to sue someone who wasn't sharing because of firewalls and who had meticulous firewall logs, so that they could get roasted.
Putting files up for everyone to grab is not making the copies. The people who download them are making the unauthorized copies. Under your theory, libraries can't have photocopiers because they are just putting it up for everyone to grab copies out of books and magazines.
He did more than just plan to break the law.
I didn't say otherwise. I'm attempting to explain the situation as I've read it.
He attempted to. He put the files up for everyone to grab. Subsequent to that, he had to do absolutely nothing to actually break the law except wait for someone to download one of those files.
Even attempting to break the law is not a crime. You have not committed a crime until you've broken the law. That's how it works.
It just seems ridiculous to me that this man admits doing everything he needed to do to commit copyright infringement, but the EFF claims that since the RIAA doesn't know what other people did or didn't do (downloading the files), he's not at fault.
That's not what's happening here. You say he admits to doing everything he needed to do to have commit copyright infringement... if that's the case, then he did commit and he's guilty. But that's not what's being argued here. What's being argued here is that he did not cross the neccesary threshold for having broke the law.
I'm not sure what your opinion is on the concept of "the burden of proof lies with the accuser", but I don't find that concept ridiculous at all. If he attempted to break the law, but did not in fact break the law, then he should not be punished. Have you committed copyright infringement by just putting digital copies on your computer? Have you committed it by putting them into a directory shared by file sharing software(something that can be inadvertently done due to user carelessness)? Or have you broken it once you have actually transfered a copyrighted work to another person?
I always fall back to the simple reasoning, no harm no foul. If no copy was disseminated, then the RIAA can not show they've been victimized, then he should not be punished. In my opinion, anything beyond that is unreasonable control over individual liberty. That's my take.
Patriot - A fan of expanding government power and spending while not wanting to pay higher taxes.
Nobody is saying he's not at fault, just that he hasn't committed copyright infringement according to the law. Attempting to commit a crime and failing is not illegal (though you might be committing another crime in the attempt), you have to actually commit a crime.
For example, if you saw a car parked on the street with keys in it and you took it for a joy ride, thinking you were stealing it, it wouldn't be illegal if it turned out the car was purchased for you by your parents. It doesn't matter what your belief or intent is, if what you're doing isn't actually breaking the law you aren't guilty of any crime. That's what is at the heart of this issue -- is it a copyright violation if the material is never actually distributed to anyone, regardless of whether the guy intended for it to be distributed?
Recursive: Adj. See Recursive.