Law Profs File Friend-of-Court Brief Against RIAA

NewYorkCountryLawyer writes "A group of 10 copyright law professors has filed an amicus curiae ('friend of the court') brief on the side of the defendant in Capitol v. Thomas, agreeing with the judge's recent decision that the $222,000 verdict won by the RIAA appears to be tainted by a 'manifest error of law.' The clear and well-written 14-page brief (PDF) argues that the 'making available' jury instruction, which the RIAA had requested and the judge ultimately accepted, was in fact a 'manifest error of law,' making the point, among others, that an interpretation of a statute should begin with the words of the statute. My only criticism of the brief is that it overstates the authorities relied on by the RIAA, citing cases which never decided the 'making available' issue as cases which had decided it in the RIAA's favor." As it turns out, the MPAA, close ally to the RIAA, has come forth with a more controversial view. They suggest that proof of actual distribution shouldn't be required. From their brief (PDF): "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

Comments

Wow. get a load of that. proof not required

[unity100]

you accuse someone of something, then come up and say that 'proof is not required'. get a load of that !!! back to middle ages. next ; witch hunting, death by stoning, and dung for dinner.

well, since it has come to this, i am hereby accusing all MPAA, RIAA members of child abuse, child pornography, treason. remember, PROOF IS NOT REQUIRED.

Re:Wow. get a load of that. proof not required

[Heather D]

Indeed, the MPAA seems to genuinely believe that they are above the judgements of us 'commoners'. There was a time when I would have laughed at this, these days I'm only pretty sure that it won't go over.

Re:Wow. get a load of that. proof not required

[Sonnekki]

Indeed! I thought we took a step forward as a society by creating rules and mandates.

If proof isn't required for this, then WHAT IS proof required for??

Christ on a stick.

Re:Wow. get a load of that. proof not required

[dogscats]

By this court's reasoning, every library in the country is guilty of copyright infringement because by permitting people to borrow books, it is "making available" those books for copying. Absolutely absurd, no?

Re:Wow. get a load of that. proof not required

[silentcoder]

What ?
I dare you to walk into any library and say 'please show me the license you have for each book you lend out'. They won't have a single sheet like that. Libraries do not have any kind of certificate either that says
"This is a public library certified to lend books under agreement with the book publishers association of $COUNTRY"

There is nothing like that. Libraries are NOT Licensed to lend out media - because nobody NEEDS a license to lend out MEDIA. Copyright does NOT prohibit lending to another party ! It prohibits copying and DISTRIBUTION OF COPIES.
Lending out an original is not copyright infringement or even MENTIONED in the copyright ACT of ANY country !

But lets get a fairer example then. Almost all libraries have more than books, you can usually also take out DVD's and music CD's - the selection is more limited than a music store but then again they tend to have a BETTER selection of the true artistic greats (even if they are less commercially successful).
These are almost always available for lending, and always easy to copy. If I loan a DVD from the library and copy it has the library 'made it available for piracy' ? I am deliberately NOT comparing with a video store which rents it out commercially because they ARE licensed (or at least SHOULD be) and pay a licensing fee for the right to do so.
Libraries are not and never should be because they are not renting out (which copyright covers) they are LENDING out (which it doesn't).

And even if in your country libraries need to have a license to lend media (does this apply to the small library of childrens books at the local creche ? my home library if a friend wants to borrow one of my discworld books ?) then it would surely not be a license to allow people to copy what they lend - the library has no control over what you do with the media you borrow once you walk out the door, if you copy it, it is your infringement and regardless of any license-to-lend or lack of it, them making it available to you is NOT an infringement.

Sorry I think the library analogy to their 'making available' argument is perfectly valid. In fact, I would have been MORE (but not much) sympathetic if they were trying to claim that making available in a fileshare is unauthorised broadcast (this is not handled identically in all copyright systems - in South Africa for example they had to amend the creative commons licenses to include broadcast because redistribution right doesn't include broadcast here but it does in America) - after all if you play a song on the radio without a license it's still broadcast regardless of whether anybody is listening. I do think though that they are well aware that any judge will decide it ISN'T a form of broadcast which is why they haven't tried it. But to say that making available = distribution even if nobody downloaded is outright ludicrous.

Re:Wow. get a load of that. proof not required

[mmurphy000]

The libraries are licensed to lend you the books. They've been granted that right by the copyright holders.

Perhaps in your country, that's true. In the US, that's incorrect.

Libraries buy books no differently than anyone else, except that since they buy in quantity, they usually work with a distributor or "jobber" rather than deal with a zillion publishers individually. Otherwise, there's no real difference — they pay, they get the books, they use the books. It just so happens that "use the books" involves a moderately-constrained lending program.

It is conceivable that there's a clause in copyright law that grants libraries special rights, though I'm not aware of any such clause.

Instead, libraries tend to work on first sale doctrine, AFAIK. They bought the book, so they can lend it, use it to prop up short table legs, or whatever they feel like doing with it. So long as they don't copy the book, there is no copyright infringement.

Comparing a library to the "making available" case is a bit of a stretch, though it is worth noting that there was a similar round of sturm und drang around libraries making coin-op copiers available to patrons, on the grounds that it facilitated copyright infringement. I forget if that made it all the way to a trial verdict or if the plaintiffs just dropped the whole issue.

Re:Wow. get a load of that. proof not required

[Rival]

They've been granted that right by the copyright holders. This is not entirely true. At least in the U.S., this is granted by the U.S. Government.

Some interesting reading, there. For example:

(c) The right of reproduction under this section applies to three copies or phonorecords of a published work duplicated solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, or if the existing format in which the work is stored has become obsolete, if--
(1) the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy. Provided one can get their collection classified as an archive in regard to this title, it should be fairly easy to make a case for fair-use (not that we should have to make a case to begin with, but these are litigious times.) I especially enjoy the note about finding replacements "at a fair price".

Boycott CD's and DVD's

[Anonymous Coward]

We should all just boycott buying any CD's or DVD's at all. Don't download anything from iTunes or any of the other stores, either. If we make a strong stance and hit them in the wallet, maybe...just maybe...they'll get the message.

Re:Boycott CD's and DVD's

[Anonymous Coward]

Unfortunately, the only message I think they'll get from that is "Oh noes! More people are pirating our shit!"

Really?

[hal2814]

"Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

If they can't prove the distribution, then how do they know the copyright infringement is happening?

Re:Really?

[zblack_eagle]

If they can't prove the distribution, then how do they know the copyright infringement is happening?

The same method they use to come up with the imaginary losses they suffer due to copyright infringement

This is turning ever more insane...

[silentcoder]

One thing worth remembering of course is that the RIAA is not alone, it has little clones all over the world that follow in the footsteps of it's master (not least because they want to be able to buy resell rights for RIAA member companies' products). Here in South Africa for example we have ASAMI - which as gone so far as to say in public that 'recording a TV-show on your VCR is technically copyright infringement but we don't intend to prosecute that one simply because it would be impractical in cost compared to the damage done".
Actually, South Africa has a subset of copyright law known as Fair Dealing which is pretty much identical in wording to the US Fair Use law and recoridng a TV show to VCR is entirely legal. So is showing a DVD of a documentary to a class of schoolchildren.

Of course they have happily confused plagiarism with copyright whenever it suited them and love to call it 'theft' - despite the fact that copyright infringement isn't theft - it's a civil infringement not a criminal one - and stories of large scale seizures of 'pirate DVD manufacturing warehouses' are common on the news.

So the impact that these kinds of idiocies in the US legal system has is global because the RIAA's minions will attempt to subvert any laws in any countries to suit.

Let's just see what we have in this post (a fairly representative sample I think):
-Merely making it available is the same actually giving somebody a copy... by that thinking if I forget to lock my door and somebody steals my fridge... I'm as guilty of theft as he is ? I would go so far as saying that sharing music isn't copyright infringement at all, downloading it may well be, but making it available (Especially as it frequently happens without the person's knowledge) is not. It could even be argued that there is significant legal uses for sharing music - for example to save a friend who also owns the same album the massive effort involved in a format shift you already made. If others now download the music from you as WELL - without your intent... are you still guilty ? This is a side-effect of the technology and has nothing to do with what you did - sharing with somebody who had the RIGHT to get a copy of the music (he already PAID for it). There is no such thing as 'attempted' infringements in civil cases, especially not copyright.
-Oh we shouldn't need to actually PROOF our claims. Not only is it enough to say you 'made it available', heck they think they don't even need to back that up !
-When they THEMSELVES download the music which this entire thing is about them claiming to own in order to proof it's available from you... that download BY THEM can be counted for damages ? How the hell are they damaged if they download their OWN music ? Before I pointed out one example of a P2P usage to share with a valid, authorized downloader - who could be MORE valid and authorized than the copyright owner ? They could try to make a case against a CD-owner having the right to DOWNLOAD rather than RIP digital copies -- but surely not that the OWNER of the copyright isn't an authorized downloader ! What is worse, if they are damaging their own copyright by downloading it... wouldn't that make this a case of evidence obtained illegally (through the breach of the very law in fact they are trying to proof you breached ?). It's not just legally unsound, it's logically unsound (to put it politely).

And that's not even thinking of things like copy protection mechanisms which are outright attempts to make it impossible to excercise our fair user rights. It seems clear to me they only care about that side of copyright law they can abuse to make money. They cannot get rid of fair use law outright, so they try to technologically strong-arm it away from us.
Frankly, I believe that a judge should say that no person or corporation can claim protection under a law they repeatedly and continuously fail to respect. If you do not respect fair use (which implies no effort made to prevent people from making backup copies), how can you claim protection under the rest of the copyright act ?

How much longer are we going to put up with this ?