And, no, this isn't money that will go to the RIAA. This is money that will pay for the appeal. This is a way that we can all help actually *fight* the RIAA instead of sitting around here bitching about how much we dislike them.
If there was ever a case that could change this law, Capitol v. Thomas is probably it.
This case IMHO has the potential to show that the fines codified in US copyright law are unconstitutional. They violate Due Process, seeing as they authorize damages that can be thousands of times (or more) actual damages. The award that this jury handed down illustrates this perfectly.
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.
(emphasis added) Notice that it doesn't say "make and distribute copies", just "distribute copies". Distribution is one of the exclusive rights granted to a copyright owner. If you distribute without permission, you infringe.
IANAL, but an award like this that dwarfs any actual damages done (has anybody even *seen* any actual damages here? I certainly haven't) seems clearly unconstitutional.
My understanding is that it has already been firmly established that the Due Process Clause means that punitive awards in excess of 10:1 (in terms of actual damages) are almost always certainly unconstitutional. Clearly due process must apply in the exact same way to statutory damages (otherwise ludicrous punitive damages could simply be codified to circumvent the Due Process Clause).
Unless the RIAA is prepared to show actual damages of $22,000 or more, this award can't stand. They would probably be hard pressed to show actual damages of even a nickel.
Then there's the whole "making available" thing too -- is it distribution or not, and all that. I guess the proverbial jury is still out on that one. But I guess it's worth a shot to argue that on appeal.
In any case, regardless of which way the appeal goes, no way should Jammie be liable for more than $200 tops. Nearly a quarter of a million? That's pure insanity.
. I spent 6 mopnths trying to them to pay for a back up system.
Maybe they failed to get you an adequate backup solution, not because they didn't understand the gravity of the situation, but because they couldn't understand your indecipherable request?
Jesus Harold Christmas Christ! Did you just "cite" the whole fucking "body of research to date"? WTF?!? LOL! While you're at it, why don't you cite all scientific research ever undertaken since the dawn of human civilization?
I understand your point that "making available" isn't in the Copyright Act. I'm not arguing that. I'm also not arguing that "making available" is infringement. However, there has been much speculation as to what the ramifications would be if, in the end, it is decided that "making available" is in fact infringement.
Even some of the amici that filed briefs in support of your case mentioned this. See for example this quote from the CCIA:
"Companies routinely include in their Web pages hyperlinks that enable persons to navigate easily to other sites throughout the Web by use of browser software. Indeed, the Web is a collection of hyperlinks. Even though the use of hyperlinks makes content located elsewhere available to a Web user, it does not constitute a distribution of that content under section 106(3)."
Here, the CCIA is equating "linking to" with "making available". Many others here on Slashdot made the same connection, leading to a lot of discussion about the ramifications of this. But where is the basis for this logic? The fact is that there is none. This idea that creating a hyperlink to some content somehow makes that content available is a fallacy. The content's availability is totally independent of any hyperlinks to that content.
Note that this discussion about "linking to" versus "making available" is independent of whether or not "making available" is considered infringement. Of course, it becomes a more interesting discussion if "making available" is infringement, but that has not yet been officially decided, correct?
The only thing I'm getting at here is that there's no need to panic that the whole Internet will fall apart if you lose this case.
I can only assume that you're talking about me. I also noticed that you made me a foe. That's unfortunate because I'm not trying to pick on you. I suppose I shouldn't have said that I think you are only trying to fool yourself, and for that I'm sorry. You can take my apology or leave it.
I'm only trying to discuss this issue to get to the bottom of whether "making available" is infringement or not. After all, that is the whole subject of the article, isn't it? So why tell everybody to not listen to my "nonsensical discussion" when this alleged nonsense is at the core of TFA.
I would love it if you could convince me that "making available" isn't infringement using a more concrete argument than simply waving your hands about and telling me that it's nonsense. I hate the RIAA just as much as anybody else (maybe even more than most). But your, mine... our disdain for the RIAA isn't going to win court cases. Only logical reasoning and persuasive arguments will (well, maybe bribes will too, but let's hope that's not how it goes).
Whatever your opinion of DeCSS is, is irrelevant. The judges in the 2600 case ruled that DeCSS was a "circumvention device" as defined under the DMCA. This is not my opinion, but a court's ruling. We can all disagree about their decision, but that doesn't change the implications of that decision.
Based upon the decision that DeCSS was a circumvention device, the judge's went a step further to say that making a link to DeCSS was trafficking in something illegal, because they are helping others to access an illegal device. Their finding hinged on the fact that DeCSS is intrinsically illegal.
Your newspaper analogy is not the same thing. Sensitive military secrets are not intrinsically illegal. The divulging of military secrets is illegal. Ergo, whoever "spilled the beans" is guilty of leaking military secrets. They are not, however, guilty of trafficking in illegal materials as the secrets themselves are not an illegal item.
That's like saying that if I put up a great big boom box on a playground and start playing music that I like to listen to -- with my own CDs, and am not getting paid for it -- and all of the kids start to dance without paying for a copy themselves, I'm infringing.
No, it's not like that at all, because when you play your boombox for everyone to hear, no copies of the music have been made for which the RIAA hasn't been paid. If the kids, instead of just dancing, used audio recording equipment to make a copy of the music as it's being played from your boombox, then a copy has been made and the kids doing the recording have infringed.
In the world of P2P music file sharing, there is no way for anyone to listen to your virtual "boombox" without them making a copy first. Hence, sharing copyrighted music through P2P MUST involve infringement.
When playing music through a boombox, there doesn't HAVE to be infringement. People can just listen without making a copy.
Hold on there. Why is making an electronic copy of a book a flagrant violation, yet making an electronic copy of a song not?
It sounds like you are saying this:
Book Scenario:
1) I make a copy of the book (scanned with OCR) <-- infringement
2) I "make available" the copy of the book on the Web <-- not infringement
Song Scenario:
1) I make a copy of a song (ripped from CD) <-- not infringement (fair use?)
2) I "make available" the copy of the song on the web <-- not infringement
Why is making the copy of the song not infringement, but the making of the copy of the book is? Are you saying that ripping the CD in order to transfer it to a different medium is fair use, but that copying the book to transfer it to electronic form is not fair use? It sounds like that is what you are implying. Where in copyright law are books excluded from this type of fair use?
I think you are only trying to fool yourself. If I made the copy of the book available on a private web server, where only I could read it, then that would likely be considered fair use. Perhaps I would do such a thing so that I can read my book from anywhere without having to tote it around (I like to travel light).
It seems pretty clear that the infringement occurs when the book is made available for public viewing. Same goes for music.
Linking to something that is in and of itself illegal, is not the same as linking to something legal, but protected by copyright.
The question of whether 2600 could link to DeCSS was not about copyright. It was about linking to something illegal.
We're talking about the legality of linking to, say, a Britney Spears song. Is a Britney Spears song illegal? No. Is child porn? Yes. Is linking to child porn illegal? You betcha. Is linking to Britney Spears? I'm sure you can guess the answer. What about DeCSS?
Also a mp3 file can be played from a remote computer without anyone making any illegal copies.
Only if there is a system in place to prevent two remote computers from playing the same song at the same time. Otherwise, you've effectively made two (or more) copies. No P2P software does this right now. So, no, using a computer and P2P is not like checking a book out of a library.
Someone could make P2P software that operates more like a library (where, if a song is checked out, it must be checked back in before someone else can listen) and possibly legally get away with it. But such P2P software would not be useful for piracy, so it wouldn't become popular:)
Is "making files available" knowing that they may be used for potential copyright infringement? No more so than a library allowing books to be borrowed.
And since P2P software doesn't operate like a library, liability, as far as infringement is concerned, is different with P2P than it is with a library. Again, the library makes books available for check out. Can they potentially be copied? Sure they can. But most of the time they don't, because it's possible to check out a book, read it, and check it back in without copying it. In the world of P2P, you CAN'T (yet) check out a song, listen to it, and then check it back in, all without making a copy. You MUST make a copy just to use P2P. Therein lies the difference.
Linking to DeCSS is a whole different animal. DeCSS wasn't simply a copyrighted work. It was a device that was outright illegal. It's existence alone was illegal. And it was covered by a part of law (the DMCA) distinct from the Copyright Act.
Asking, "Is it legal to link to DeCSS?" is more like asing, "Is it legal to link to child porn?" than it is like asking, "Is it legal to link to a Britney Spears song?"
Sorry to double reply, but as I read other posts, more thoughts come to my mind.
I'm not so sure that the "making available" issue is so clear cut that we can simply dismiss the RIAA's argument out of hand, because the Copyright Act never mentions "making available".
What if I post, word for word, the entire text of the latest Harry Potter book on my website. According to the "actual distribution" infringement theory, J.K Rowling couldn't sue me for infringement unless she can prove that some specific instance of someone (other than herself or an agent of hers) downloading and reading the book has occurred. She can write cease and desist letters all she wants, but I'll keep my website operating because, hey, she can't prove anyone else has actually read my web page.
That doesn't sound right to me. Clearly, by making the text of the book available on my website, I'm infringing. No reasonable person would question that. Yet, my only act was to make the text available. How can I infringe if "making available" isn't mentioned anywhere in the Copyright Act? It's not that simple, I'm afraid. And making other forms of media available, be it movies, music, or software, should be no different.
This issue isn't cut and dry, as you claim it is, just because the Copyright Act never mentions "making available". You need a more convincing argument.
If I make available some copyrighted material on my web server, then die of some mysterious illness, leaving the web server running, then I think that the one downloading the material is the one infringing -- so neither linking to content or making it available is violating copyright.
Fair enough, I've been making the assumption that "making available" does in fact amount to infringement. But my main argument is that linking does not equate to "making available", whether or not "making available" is infringement.
All I'm saying is that Google and the rest of the Intarweb should be safe if the RIAA wins this case. The ability to safely link to copyrighted material on the Web shouldn't hinge on the outcome of this case.
I'm not making an argument that "making available" does constitute copyright infringement. I'm just saying that, assuming the RIAA wins this, hyperlinking doesn't necessarily equate to "making available". In which case, if the RIAA does win, it doesn't automatically mean that Google and everyone else on the Web is infringing just because they link to copyrighted content.
Whether or not "making available == infringement" has no bearing on the "linking == making available" argument.
it means web sites and blogs can't provide links to each other or to anything else on the internet which is copyrighted
When and where was this established (that "linking to" is the same as "making available")? IMHO (IANALBTW), they are not equivalent.
I'd be very interested in knowing if it has been established, as a matter of law, that creating a hyperlink on the World Wide Web is considered "making available".
In an earlier post (above) I laid out a counter argument against equating the two:
Example time: Bob places a cracked copy of World of Warcraft on his web server. Google indexes Bob's website. Somebody does a Google search and Google produces a link to Bob's illegal copy of Wow. Google isn't making the illegal copy of WoW available. Bob is making it available on his website. Google merely refers to it.
Here's an easy way to tell the difference: if Bob takes it off his webserver, it's no longer available even if Google still provides a link to where it was. Google clearly isn't making it available. Conversely, if Google removes their link, does that mean it is no longer available? Of course not, anyone could still get to it directly by typing the URL. Again, Google clearly isn't making it available.
It doesn't get any simpler than that. Google doesn't control whether or not the linked item is available. Therefore Google isn't making it available.
If it wouldn't be too much bother, I'd like to hear what is wrong with my line of reasoning. Especially from someone knowledgeable about the topic. If it's true that "linking to" is equal to "making available" in the eyes of the law, then... well, the Web is doomed.
Isn't linking to something 'making available' ? It seems like it would be, by definition.
Why? I just don't see that connection, and would like to hear a clear line of reasoning that leads to that conclusion.
I've said it in other posts already, but I'll say it again. The linker isn't making anything available. The linker is simply referring to something made available by someone else.
Example time: Bob places a cracked copy of World of Warcraft on his web server. Google indexes Bob's website. Somebody does a Google search and Google produces a link to Bob's illegal copy of Wow. Google isn't making the illegal copy of WoW available. Bob is making it available on his website. Google merely refers to it.
Here's an easy way to tell the difference: if Bob takes it off his webserver, it's no longer available even if Google still provides a link to where it was. Google clearly isn't making it available. Conversely, if Google removes their link, does that mean it is no longer available? Of course not, anyone could still get to it directly by typing the URL. Again, Google clearly isn't making it available.
It doesn't get any simpler than that. Google doesn't control whether or not the linked item is available. Therefore Google isn't making it available.
. What could copyright possibly have to do with making a work available? Libraries make works available. Has nothing to do with copyright infringement.
The problem with this analogy is that libraries make works available for people to "check out". A work can be checked out from a library without anyone making any illegal copies.
P2P file sharing software doesn't work that way. When you run Gnutella, or eDonkey (or whatever today's popular P2P copyright-infringing app is) you don't make works available for check out. You make them available for one purpose only: copying. There is no other use for those applications. That doesn't make the apps themselves illegal, since they could legitimately be used for sharing non-copyrighted works, or works for which the sharer has a license for distribution.
Using those apps for hosting of copyrighted works for which the hoster has no license to distribute is clearly infringement. The hoster is making the works available for the specific and singular purpose of illegal copying. A completely different purpose than that of libraries.
Go ahead and walk into a library, pick up a random book, and kindly ask the librarian if you may willy-nilly make a complete copy of the book because you would rather not have to pay to buy a copy at the bookstore. See what he/she says.
Likewise Google makes works available but it just points out where they are. Are we seriously entertaining the notion that a figurative card catalog is copyright infringement?
No. Nobody on the RIAA's side argued this. This is a red-herring that was raised by someone (can't remember who, but TFA mentions it) arguing on behalf of the defendant. No court has ever equated "linking to" with "making available"*. The linker is simply referring to a work "made available" by someone else.
If Bob posts a cracked copy of World of Warcraft on his website, and Google indexes Bob's website, Google did not make the copy of WoW available. Bob made it available when he placed it on a web server where it can be accessed from the public Internet. Bob is the infringer, not Google.
In any case, the RIAA's case doesn't require that "linking to" is the same as "making available" since P2P software doesn't just provide links to where works can be found, but actually hosts the works, and actively contributes to the infringement by transferring a copy of the work upon request.
* At least, not that I'm aware of. And if any court has ruled this, then it's only a matter of time before X vs. Google goes to the Supreme Court where it would be reversed.
What if the quote was used within the concept of "fair use", but in a hyperlink to an illegal copy of the work, and the linking author didn't know that it wasn't a legal copy? Was the fair user guilty of copyright infringement because they inadvertently made my illegally copied work available?
No, because linking to the copyrighted work does not constitute "making available". On the Web, something is made available at the point at which the work in question is put onto a web server where it can be accessed from the public Internet. In your example, the person that placed the copyrighted work on the web server that hosts the work is the infringer. The linker isn't making anything available, he/she simply refers to something "made available" by someone else.
I'm not aware of any ruling that has established that merely "linking to" equates with "making available". And I doubt that it will ever happen (Google et. al. wouldn't survive and the entire usefulness of the web would go down the toilet).
Pyramid marketing and shady business or not, it's an intriguing idea.
Zonk, am I going to have to start filtering out the stories you post? That is the stupidest thing I've ever read on Slashdot's front page. And believe me, I've read some damn stupid things on it before.
I heard the NSA is entering a new hash algorithm, named AYBABTU, into the competition. Interestingly, reverse engineering of the algorithm has shown it to be very similar to an algorithm, tentatively named Eksore, that was submitted to the contest by a local Junior High cryptography team.
Slashdot Mirror
www.freejammie.com
I donated $70. You can too.
And, no, this isn't money that will go to the RIAA. This is money that will pay for the appeal. This is a way that we can all help actually *fight* the RIAA instead of sitting around here bitching about how much we dislike them.
If there was ever a case that could change this law, Capitol v. Thomas is probably it.
This case IMHO has the potential to show that the fines codified in US copyright law are unconstitutional. They violate Due Process, seeing as they authorize damages that can be thousands of times (or more) actual damages. The award that this jury handed down illustrates this perfectly.
Notice that it doesn't say "make and distribute copies", just "distribute copies". Distribution is one of the exclusive rights granted to a copyright owner. If you distribute without permission, you infringe.
IANAL. YAONALE.
IANAL, but an award like this that dwarfs any actual damages done (has anybody even *seen* any actual damages here? I certainly haven't) seems clearly unconstitutional.
My understanding is that it has already been firmly established that the Due Process Clause means that punitive awards in excess of 10:1 (in terms of actual damages) are almost always certainly unconstitutional. Clearly due process must apply in the exact same way to statutory damages (otherwise ludicrous punitive damages could simply be codified to circumvent the Due Process Clause).
Unless the RIAA is prepared to show actual damages of $22,000 or more, this award can't stand. They would probably be hard pressed to show actual damages of even a nickel.
Then there's the whole "making available" thing too -- is it distribution or not, and all that. I guess the proverbial jury is still out on that one. But I guess it's worth a shot to argue that on appeal.
In any case, regardless of which way the appeal goes, no way should Jammie be liable for more than $200 tops. Nearly a quarter of a million? That's pure insanity.
I suppose it's no coincidence that you left off the rest of that definition.
G =Search+Images&gbv=2
= Search+Images&gbv=2
Compare these two google image searches: one for chair, and one for seat.
http://images.google.com/images?hl=en&q=chair&btn
http://images.google.com/images?hl=en&q=seat&btnG
Hmmm... interesting how most regular people define the difference.
It's a fucking SEAT!!!!!!
It's a race car, not a fucking kitchen. It's called a SEAT!
Jesus Harold Christmas Christ! Did you just "cite" the whole fucking "body of research to date"? WTF?!? LOL! While you're at it, why don't you cite all scientific research ever undertaken since the dawn of human civilization?
You're dumb. Nice prose though. It's like... poetry.
Even some of the amici that filed briefs in support of your case mentioned this. See for example this quote from the CCIA:Here, the CCIA is equating "linking to" with "making available". Many others here on Slashdot made the same connection, leading to a lot of discussion about the ramifications of this. But where is the basis for this logic? The fact is that there is none. This idea that creating a hyperlink to some content somehow makes that content available is a fallacy. The content's availability is totally independent of any hyperlinks to that content.
Note that this discussion about "linking to" versus "making available" is independent of whether or not "making available" is considered infringement. Of course, it becomes a more interesting discussion if "making available" is infringement, but that has not yet been officially decided, correct?
The only thing I'm getting at here is that there's no need to panic that the whole Internet will fall apart if you lose this case.
I can only assume that you're talking about me. I also noticed that you made me a foe. That's unfortunate because I'm not trying to pick on you. I suppose I shouldn't have said that I think you are only trying to fool yourself, and for that I'm sorry. You can take my apology or leave it.
... our disdain for the RIAA isn't going to win court cases. Only logical reasoning and persuasive arguments will (well, maybe bribes will too, but let's hope that's not how it goes).
I'm only trying to discuss this issue to get to the bottom of whether "making available" is infringement or not. After all, that is the whole subject of the article, isn't it? So why tell everybody to not listen to my "nonsensical discussion" when this alleged nonsense is at the core of TFA.
I would love it if you could convince me that "making available" isn't infringement using a more concrete argument than simply waving your hands about and telling me that it's nonsense. I hate the RIAA just as much as anybody else (maybe even more than most). But your, mine
Whatever your opinion of DeCSS is, is irrelevant. The judges in the 2600 case ruled that DeCSS was a "circumvention device" as defined under the DMCA. This is not my opinion, but a court's ruling. We can all disagree about their decision, but that doesn't change the implications of that decision.
Based upon the decision that DeCSS was a circumvention device, the judge's went a step further to say that making a link to DeCSS was trafficking in something illegal, because they are helping others to access an illegal device. Their finding hinged on the fact that DeCSS is intrinsically illegal.
Your newspaper analogy is not the same thing. Sensitive military secrets are not intrinsically illegal. The divulging of military secrets is illegal. Ergo, whoever "spilled the beans" is guilty of leaking military secrets. They are not, however, guilty of trafficking in illegal materials as the secrets themselves are not an illegal item.
In the world of P2P music file sharing, there is no way for anyone to listen to your virtual "boombox" without them making a copy first. Hence, sharing copyrighted music through P2P MUST involve infringement.
When playing music through a boombox, there doesn't HAVE to be infringement. People can just listen without making a copy.
Hold on there. Why is making an electronic copy of a book a flagrant violation, yet making an electronic copy of a song not?
It sounds like you are saying this:
Book Scenario:
1) I make a copy of the book (scanned with OCR) <-- infringement
2) I "make available" the copy of the book on the Web <-- not infringement
Song Scenario:
1) I make a copy of a song (ripped from CD) <-- not infringement (fair use?)
2) I "make available" the copy of the song on the web <-- not infringement
Why is making the copy of the song not infringement, but the making of the copy of the book is? Are you saying that ripping the CD in order to transfer it to a different medium is fair use, but that copying the book to transfer it to electronic form is not fair use? It sounds like that is what you are implying. Where in copyright law are books excluded from this type of fair use?
I think you are only trying to fool yourself. If I made the copy of the book available on a private web server, where only I could read it, then that would likely be considered fair use. Perhaps I would do such a thing so that I can read my book from anywhere without having to tote it around (I like to travel light).
It seems pretty clear that the infringement occurs when the book is made available for public viewing. Same goes for music.
Linking to something that is in and of itself illegal, is not the same as linking to something legal, but protected by copyright.
The question of whether 2600 could link to DeCSS was not about copyright. It was about linking to something illegal.
We're talking about the legality of linking to, say, a Britney Spears song. Is a Britney Spears song illegal? No. Is child porn? Yes. Is linking to child porn illegal? You betcha. Is linking to Britney Spears? I'm sure you can guess the answer. What about DeCSS?
Do you see the difference?
Someone could make P2P software that operates more like a library (where, if a song is checked out, it must be checked back in before someone else can listen) and possibly legally get away with it. But such P2P software would not be useful for piracy, so it wouldn't become popular
Linking to DeCSS is a whole different animal. DeCSS wasn't simply a copyrighted work. It was a device that was outright illegal. It's existence alone was illegal. And it was covered by a part of law (the DMCA) distinct from the Copyright Act.
Asking, "Is it legal to link to DeCSS?" is more like asing, "Is it legal to link to child porn?" than it is like asking, "Is it legal to link to a Britney Spears song?"
Sorry to double reply, but as I read other posts, more thoughts come to my mind.
I'm not so sure that the "making available" issue is so clear cut that we can simply dismiss the RIAA's argument out of hand, because the Copyright Act never mentions "making available".
What if I post, word for word, the entire text of the latest Harry Potter book on my website. According to the "actual distribution" infringement theory, J.K Rowling couldn't sue me for infringement unless she can prove that some specific instance of someone (other than herself or an agent of hers) downloading and reading the book has occurred. She can write cease and desist letters all she wants, but I'll keep my website operating because, hey, she can't prove anyone else has actually read my web page.
That doesn't sound right to me. Clearly, by making the text of the book available on my website, I'm infringing. No reasonable person would question that. Yet, my only act was to make the text available. How can I infringe if "making available" isn't mentioned anywhere in the Copyright Act? It's not that simple, I'm afraid. And making other forms of media available, be it movies, music, or software, should be no different.
This issue isn't cut and dry, as you claim it is, just because the Copyright Act never mentions "making available". You need a more convincing argument.
All I'm saying is that Google and the rest of the Intarweb should be safe if the RIAA wins this case. The ability to safely link to copyrighted material on the Web shouldn't hinge on the outcome of this case.
I'm not making an argument that "making available" does constitute copyright infringement. I'm just saying that, assuming the RIAA wins this, hyperlinking doesn't necessarily equate to "making available". In which case, if the RIAA does win, it doesn't automatically mean that Google and everyone else on the Web is infringing just because they link to copyrighted content.
Whether or not "making available == infringement" has no bearing on the "linking == making available" argument.
I'd be very interested in knowing if it has been established, as a matter of law, that creating a hyperlink on the World Wide Web is considered "making available".
In an earlier post (above) I laid out a counter argument against equating the two:If it wouldn't be too much bother, I'd like to hear what is wrong with my line of reasoning. Especially from someone knowledgeable about the topic. If it's true that "linking to" is equal to "making available" in the eyes of the law, then... well, the Web is doomed.
I've said it in other posts already, but I'll say it again. The linker isn't making anything available. The linker is simply referring to something made available by someone else.
Example time: Bob places a cracked copy of World of Warcraft on his web server. Google indexes Bob's website. Somebody does a Google search and Google produces a link to Bob's illegal copy of Wow. Google isn't making the illegal copy of WoW available. Bob is making it available on his website. Google merely refers to it.
Here's an easy way to tell the difference: if Bob takes it off his webserver, it's no longer available even if Google still provides a link to where it was. Google clearly isn't making it available. Conversely, if Google removes their link, does that mean it is no longer available? Of course not, anyone could still get to it directly by typing the URL. Again, Google clearly isn't making it available.
It doesn't get any simpler than that. Google doesn't control whether or not the linked item is available. Therefore Google isn't making it available.
P2P file sharing software doesn't work that way. When you run Gnutella, or eDonkey (or whatever today's popular P2P copyright-infringing app is) you don't make works available for check out. You make them available for one purpose only: copying. There is no other use for those applications. That doesn't make the apps themselves illegal, since they could legitimately be used for sharing non-copyrighted works, or works for which the sharer has a license for distribution.
Using those apps for hosting of copyrighted works for which the hoster has no license to distribute is clearly infringement. The hoster is making the works available for the specific and singular purpose of illegal copying. A completely different purpose than that of libraries.
Go ahead and walk into a library, pick up a random book, and kindly ask the librarian if you may willy-nilly make a complete copy of the book because you would rather not have to pay to buy a copy at the bookstore. See what he/she says.No. Nobody on the RIAA's side argued this. This is a red-herring that was raised by someone (can't remember who, but TFA mentions it) arguing on behalf of the defendant. No court has ever equated "linking to" with "making available"*. The linker is simply referring to a work "made available" by someone else.
If Bob posts a cracked copy of World of Warcraft on his website, and Google indexes Bob's website, Google did not make the copy of WoW available. Bob made it available when he placed it on a web server where it can be accessed from the public Internet. Bob is the infringer, not Google.
In any case, the RIAA's case doesn't require that "linking to" is the same as "making available" since P2P software doesn't just provide links to where works can be found, but actually hosts the works, and actively contributes to the infringement by transferring a copy of the work upon request.
* At least, not that I'm aware of. And if any court has ruled this, then it's only a matter of time before X vs. Google goes to the Supreme Court where it would be reversed.
I'm not aware of any ruling that has established that merely "linking to" equates with "making available". And I doubt that it will ever happen (Google et. al. wouldn't survive and the entire usefulness of the web would go down the toilet).
I heard the NSA is entering a new hash algorithm, named AYBABTU, into the competition. Interestingly, reverse engineering of the algorithm has shown it to be very similar to an algorithm, tentatively named Eksore, that was submitted to the contest by a local Junior High cryptography team.