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

Is this a good thing?

[FroBugg]

Really, is this a good thing?

The guy took CDs he bought. He ripped them to mp3. He then loaded those mp3s into some file-sharing program. Why did he do this if not for the purpose of copyright infringement?

Yeah, yeah, yeah. The RIAA are bad guys, we all have to hate them. I agree that the judgements they're going after are ridiculous. But is the EFF really trying to say that it's ok to try to commit copyright infringement, but only wrong if you get caught completing it?

Re:Is this a good thing?

[webmaster404]

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.

Too rich to be guilty

[Lije Baley]

With all that money in his trunk, why would Mr. Howell need to steal music? Plus, I don't think they even have broadband on that island.

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.

Thought crimes

[flyingfsck]

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?

Re:Thought crimes

[stubear]

Ever hear of "conspiracy to [commit some crime]"? You can be held responsible for actions that would have led to a more serious crime. Just because no one downloads the files does not mean his intent was to illegally distribute intellectual property for which he did not have the rights to do so.

Re:Thought crimes

[jotok]

This isn't the same as "contemplating" a crime.
The laws that govern the use of force by, e.g., law enforcement personnel and the military, in most (if not all) nations recognize the idea of "intent." There are clear markers for judging whether or not a reasonable person intends to do something hostile.

If you think all day of how you would like to blow up Congress, then you are guilty of nothing that can or should be prosecutable.
However, if you think all day of how you would like to blow up Congress, then acquire explosives and study blueprints to find out how to bring the building down...well, now you are actually on the road to making your thoughts a reality. If you are caught before the bomb goes off, you cannot use "This is thoughtcrime!" as an excuse. This is also why we have laws against "attempted murder" or "attempted rape" on the books.

Re:Thought crimes

[Socguy]

I'm not sure where you are based, but here in Canada, no that is not a crime nor is it a conspiracy to commit a crime. In order to commit theft, you have to take something away from the lawful owner so they don't have it anymore. In terms of copyright infringement, you are allowed to make a copy of virtually anything for personal, non-commercial use. Until the laws are changed, personal copies can come from downloading off the internet.

Re:Thought crimes

[Myopic]

Yes, you are correct, that's why downloading songs without paying for them isn't theft -- it's copyright infringement. The difference is just as you say -- you must deprive the original owner of enjoyment of the thing stolen. If I download a song from you, you can still enjoy the song, so it isn't theft, and people who claim it is theft are knowingly pushing lies. It isn't at all like stealing a car, in which case you could

And while we're on the topic, it also isn't theft to skip commercials, or to time-shift, or to place-shift, or to resell anything you own, or to loan anything you own. Furthermore, libraries doesn't facilitate theft. The entire concept is so totally wrong and bad for humanity - it's frustrating to hear such lame arguments made.

Re:Thought crimes

[Myopic]

No. Thinking about a crime isn't conspiracy to commit the crime, it's premeditation, which isn't illegal, but does make a crime more serious and susceptible to greater punishment. To commit conspiracy you must take your criminal premeditation, convert it into outward communication, and engage another human being in your criminal planning.

All countries I know of, however, DO have thought crimes: drug prohibition. Think about it: what does a drug do to you? It changes your brain chemistry, which is another way of saying it changes your thoughts. Drug prohibition, then, is making it illegal to have those thoughts. That is, literally, thought crime and thought control. Does that make drug prohibition bad public policy? Maybe not, but it is a pretty significant limitation on freedom.

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.

Trying to break the law is not a crime.

[riseoftheindividual]

Planning on breaking the law is not a crime. Actually breaking the law is what defines a crime. Granted, if you've planned on breaking some law and your planning constitutes conspiracy to commit a crime by definition of a law against conspiracy to commit a crime, then you've broken the law in so far as conspiracy is concerned, not as far as the actual crime you conspired to commit(unless you actually committed it).

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

[FroBugg]

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.

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

[Charbox]

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.

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

[Artraze]

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.

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

[riseoftheindividual]

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.

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

[NMerriam]

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.

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?

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.

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

[The Empiricist]

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.

Sure you can. In the People v. Dlugash, the Appellate Court of New York held that a defendant could be found guilty of attempted murder for shooting a dead body that the defendant thought was still alive (but that might be dead). The court upheld the Legal Impossibility defense: the defendant was not guilty of actual murder. But the defendant was not completely off the hook.

All this talk of crime may be beside the point because these suits are all civil in nature, not criminal (remember O.J. being acquitted for murder but being found liable for "wrongful death?"). The burden of proof in civil cases is only a "preponderance of evidence," scales balanced between plaintiff and defendant, not the "beyond a reasonable doubt" requirement of criminal conviction, scales heavily tilted in favor of the defendant.

The judge might decide that the Howells have a defense based on the assertion that only the RIAA-authorized investigators downloaded the copyrighted materials. On the other hand, lets say that you drop off a really nice suit with the dry cleaners. You only authorize them to clean the suit. You think that they might be lending clothes out before they are picked up a la Seinfeld. Thus, you hire a private investigator to go the dry cleaner and offer to rent the really nice suit. The dry cleaner does not know that you hired the private investigator. The dry cleaner takes the private investigator's offer, exchanging the suit (for a short period of time in exchange for some payment). You sue.

Would the judge deny relief to you because you had authorized the private investigator to make the offer?

Amicus Curiae

[Graham MacRobie]

Had to look it up myself...

amicus curiae - A friend of the court; a nonparty who interposes, with the permission of the court, and volunteers information upon some matter before the court.

Bit off topic..

[pionzypher]

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?

Re:Bit off topic..

[cpt kangarooski]

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.

getting old

[bwy]

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. I would like to think that most people want to enjoy music while respecting the rights of people who make the music to make a living. 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. The Amazon store shows progress- at least we are free from DRM hell.

I'd like to see a model where when you pay for music you actually receive a license of some sort for the given song or album. This would be good for a lifetime, and when a new media format comes out, you could get the album or single reissued to you just pay for the price of the media and handling charges. As it stands I had some albums on cassette that I subsequently bought on CD and eventually lost the CDs and ended up buying the digital DRM version. I'll also have to buy the non-DRM version now if I want it. This is total B.S. and seems to be in direct contradiction to the argument that you aren't "buying music", you're "licensing" it.

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.

The clients mis-advertise a lot anyway.

[Egdiroh]

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.

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?

[DustyShadow]

Actually contributory and vicarious liability has full support in 17 USC 106 where it says it is unlawful "to do and to authorize any of the following"

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Furthermore, the legislative history supports this construction of the statute in which Congress stated: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."

In contrast, however, there is nothing in the statute or the legislative history that suggests that the making available should be infringement. It is one reading of the statute from a case in the 4th Circuit and the opinion itself was meant to be limited to libraries. (at least how I read it)

Re:Car analogy!

[danaris]

So, you're saying that an undercover cop buying drugs is authorized to buy those drugs, so the person selling the drugs can't be prosecuted?

Selling drugs is illegal no matter who you're selling them to. The same is not true of copyrighted content.

Dan Aris

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"

Re:Consequences?

[NewYorkCountryLawyer]

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.

It's a civil case, not a criminal one, right?

[DMCBOSTON]

Atlantic v Howell is a civil case, where plaintiff asserts a damage and wants compensation. A lot of talk here about thought crime and all, but that's not the case. The government is not charging them criminally. No one's going to jail, unless they start up debtor's prison. Note: IANAL, I just play one on the net. Unlike NYCL, who actually knows what he's talking about.