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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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I did not know I gave it out...
By dragonbif on 5/2/2008 8:52:55 PM , Rating: 1
WOW…I am not sure what to think of this. From what I can tell if you don’t send it to them knowingly you are not responsible but anyone can say “I didn’t know”.
Here we go; if I mail you a copy of the CD that is bad because I knowingly did it. If I put 1000 copies on the street and post it in the news paper that anyone can come get them that is ok because I do not know who came and got it.
I thought Kazaa changed it so it would not put your music in the shared folder by default? It’s been so long and I do not use it anymore. I can buy the music for $.89 a song and I do not mind paying for it then burn it to a CD and done not only that but I can burn the song 10 times. With all the crap people can put in a song when you download it, I do not trust it anymore and scanning for viruses does not always work.
This has nothing to do with the article but I feel that people are becoming used to the idea that they can get movies/music for free and that they should have the right to get it. I personally know someone that has not purchased a single movie or cd in years and is not the only one. He feels that if someone tries to stop his access that it is a crime. The easier it is to get it the more people are going to do it and that is going to hurt. I sometime read or hear people say that because it is put out there for more people to get the more popular it can because as that may be true it does not mean they are going to go out and buy it when they have it.




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