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.

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: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.

[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: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"