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Offering doesn't equal distribution, says Judge

Arizona District Court Judge Neil V. Wake dealt a heady blow to the RIAA last Monday, striking down its popular “making available” theory as insufficient grounds for accusations of copyright infringement.

Wake’s ruling (PDF) set a higher burden of proof for the RIAA’s campaign of litigation: RIAA investigators – not third party agents, like those at MediaSentry – must download files from a defendant’s hard drive in order to accuse them of unlawful distributing copyrighted materials.

The decision comes from the ongoing case of Atlantic v. Howell, in which the RIAA alleges that Jeffrey Howell and his wife pirated music by making it available for download via KaZaA’s Shared Folders feature. Its claims were supported by screenshots of Howell’s shared folder, as visible to other KaZaA users.

Howell claims that he never intended to place his music within KaZaA’s shared folder, “because that’s not where it belongs.” KaZaA shared the folder without his permission, he said.

In his ruling, Wake wrote that infringement of copyright owners’ rights “requires an actual dissemination of either copies or phonorecords.” Making the music available, which Wake referred to as “an offer to distribute,” does not necessarily constitute actual distribution and therefore inapplicable to the RIAA’s claims. Further, wrote Wake, the court disagreed with the RIAA’s claim that the terms “distribution” and “publication” are alike, as the “publication” of a good is merely the “offering” to distribute copies of a copyrighted work “for purposes of further distribution.”

MediaSentry investigators were able to download 12 of Howell’s files, however, but the court could not conclusively decide that Howell was responsible for making those files available. Wake cited Howell’s own testimony: Howell denied authorizing any of the songs in question for download to other KaZaA users, either by placing them into his shared folder or by using KaZaA’s interface to add them to his shared files list. Adding insult to injury, the EFF filed an amicus curiae brief that claimed that copyright owners cannot infringe their own copyrights, as was the case with MediaSentry acting on the RIAA’s behalf.

It’s important to note that the “making available” theory, as applied in Atlantic v. Howell, is only insufficient for claims regarding the infringement of a copyright owner’s distribution rights; it is sufficient, however, for proving infringement of a copyright owner’s right to reproduce their work – Wake compares this to “a business rents customers video cassettes and a room for viewing the cassette.”

Last December, the RIAA claimed that Howell’s personally ripped music collection was an “unauthorized copy” of its copyrighted works – however the exact meaning of this statement was unclear and it did not directly answer Judge Wake’s original question.

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By BigToque on 5/2/2008 8:52:06 PM , Rating: 1
If a drug dealer gets busted can he just say that he was only offering to deal?

RE: SO...
By KristopherKubicki on 5/2/2008 8:54:30 PM , Rating: 5
Criminal and civil matters have different burdens of proof

RE: SO...
By MatthiasF on 5/3/2008 1:20:44 AM , Rating: 5
Just like Blogs and News Articles, eh?

RE: SO...
By mikeyD95125 on 5/3/2008 1:52:41 AM , Rating: 4
Ha that's a good one!!

RE: SO...
By Etern205 on 5/2/2008 9:41:21 PM , Rating: 2
One night around 9 or so as my friend was waiting for the bus, he decided to throw the litter he had in his pocket. The only garbage can available was in the park. So he walked in threw the litter and guess what? He got ticket for trespassing!

That is so f***ked up! :\

RE: SO...
By fic2 on 5/2/2008 10:06:12 PM , Rating: 2
In Denver we have a similar f**ked up situation - the city built a walking bridge from one of the up and coming neighbor to the downtown area where all the bars and restaurants are. To get to the bridge you have to go through a park. They start ticketing people after 10pm for going through the park. So, basically using the bridge for its intended purpose you get a trespassing ticket - total bs.

RE: SO...
By Viditor on 5/3/2008 8:32:12 PM , Rating: 2
This has happened in many places...until some bright guy sues the city for right of easement and gets it overturned.

"Let's face it, we're not changing the world. We're building a product that helps people buy more crap - and watch porn." -- Seagate CEO Bill Watkins
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