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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 Tsuwamono on 5/2/2008 9:10:30 PM , Rating: -1
like what 300$ for an OS? lol thats just retarded imo

By MrWho on 5/2/2008 11:25:39 PM , Rating: 5
While I agree with you in that $300 for an OS is just plain silly, the fact is that we live in a free country (*) and:

1) anyone is free to charge whatever they want for a good (although that's not true - or shouldn't be - for any essential good, which an OS isn't); and

2) anyone is free to buy or not said good.

So, if you think $300 is expensive, then don't buy it.

(*) When I say "we live in a free country", of course I like to think that way. A "free country" is a very subjective matter. And, secondly, I suppose that, unless for some freaky coincidence, we're talking about two different countries... But I digress...

By MatthiasF on 5/3/2008 1:15:56 AM , Rating: 1
Why isn't this same logic applied to music?

By Samus on 5/3/2008 7:06:35 AM , Rating: 2
Good. It's an appropriate ruling.

By ViroMan on 5/3/08, Rating: -1
By SavagePotato on 5/3/2008 4:49:27 PM , Rating: 4
#1 You Just defeated your own argument, Use Linux, you don't have a god given right to Windows.

#2 OEM copies of Vista home premium with a new pc do not cost $300, and home basic costs even less.

#3 Back to school on how a capitalist economy works for you.

By ViroMan on 5/3/08, Rating: -1
By omnicronx on 5/3/2008 6:18:18 PM , Rating: 2
No, I did not. Companies are still forced to buy windows vista so that there windows applications that are unique to windows only, still work.
Your argument makes no sense, they would have developed said programs for the previous version of windows (in this case XP not Vista). They are not forced to upgrade, when their software works perfectly fine on XP. As the OP stated, if you dont want it, don't buy it! You also need to keep in mind that for businesses buying licenses, they do not cost nearly as much as a retail versions, not to mention the fact you buy a certain amount in bulk for a cheaper price. Vista Ultimate is also unneccessary in a business environment.

By ViroMan on 5/3/08, Rating: -1
By elpresidente2075 on 5/3/2008 9:03:41 PM , Rating: 5
You obviously have missed a few things here:
1. You obviously don't understand how corporate licensing works (what we're talking about here)
2. XP will be supported by Microsoft until something like 2015 for corporate customers.
3. The only $300 version of Windows is Ultimate.

You did make a correct point in that most programs developed for the XP API will work properly, however there are a lot that are broken because they did, in fact, change the Windows API significantly with Vista. Of course, it has lots of compatibility written into it for older code, but the fact remains that Vista is a whole new set of code (as I recall they rewrote most of the kernel - eesh!) that breaks a lot of things that were not specifically designed for it.

By FITCamaro on 5/4/2008 8:25:57 AM , Rating: 3
So what happens when the company wants to switch from Linux to Windows? Oh right, they have to pay money to port their programs to Windows. Its the same either way numb nuts.

By NullSubroutine on 5/3/2008 10:03:12 AM , Rating: 2
Then let's let companies charge whatever they want on food, oil, and...oh wait, thats right they do!

By BansheeX on 5/3/2008 3:40:33 PM , Rating: 3
Uhhhhh no. An artificially high price can't work unless people buy it. If some apple farmer WANTS to sell his apples for $100 a piece with today's supply and demand, he can't. No one will buy them, because it's so much higher than cost that some other apple farmer will see an opportunity to steal his profit just by selling lower. That's what a free market does. Competition results in prices getting bid down closer to cost in an attempt to win you as a customer. And no transaction is made without the belief of mutual benefit.

The amount of socialist nonsense on these boards is staggering. Everyone always misattributes problems to the market rather than government policy. Find the root causes, the enablements of monopolies, as government is a monopoly itself. It's always some form of government intervention eroding competition, stifling innovation, and making you poorer: be it subsidies, no-bid contracts, special privilege legislation like NAFTA and the HMO act, the central bank manipulating interest rates below where the market wants them to avoid politically inconvenient market corrections, the central bank inflating (counterfeiting) to pay for deficit government waste. No wonder you can't afford anything and keep begging to give the arsonist more firefighting duties, you keep misattributing the causes of problems and re-electing politicians who collude with businesses or "regulate" the market when they should simply be protecting your rights, following supreme law by backing the dollar with a non-inflatable asset, offering recourse through the courts, and staying out of the market.

By kc77 on 5/3/2008 4:57:11 PM , Rating: 3
Buy any gas lately? Your premise only works with goods that are nonessential to our society. So apples will work with supply and demand, but essential goods do not. Which is why these services used to be provided by the government.

You have like three different economic models running throughout your statement. While the premise is kinda accurate your cause and effect thesis mixes the pros and cons of your economic and political models.

By BansheeX on 5/3/2008 6:37:33 PM , Rating: 4
Your premise only works with goods that are nonessential to our society.

Um, no, you're inserting a self-serving entitlement bias. People in Africa need food, but socialist policy isn't going to get it to them. There are plenty of billionaires in Zimbabwe, unfortunately their central bank has made their money worth nothing relative to other goods and currencies. Producers are going to sell to whoever can pay the most on the world market because it makes no sense to do otherwise. There is a finite amount of any good, essential and non-essential, and the world is competing for them. When the world delinks from the dollar and allows it to collapse, the rest of the world becomes more wealthy by definition. They will now get more of those finite goods than overleveraged Americans, particularly ones which they themselves are producing and exporting to us. American oil companies may even start exporting a lot of our oil as Americans become less and less able to afford it. That's when nationalization of oil could happen, as I happen to believe in peak oil.

Buy any gas lately?

Yep, and the high price has created the demand within me and many other people to save for an alternative vehicle, an electric car. That demand, which didn't exist when gas was the cheapest solution, creates a market in which companies are rising to meet it. That's how a free market works. Unfortunately, I've been getting my money and purchasing power taken from me by my government in a variety of ways, including to subsidize ethanol. I have no choice in the matter, it's just taken. So I've been delayed in being able to afford and invest in the proper technologies. That's socialist idealism, wherein you trust politicians choosing something with your money better than yourself.

By kc77 on 5/3/08, Rating: 0
By Duwelon on 5/4/2008 1:12:32 AM , Rating: 2
Typical douchebag response. "go watch this movie, it says what I'm too lazy to say"

By BansheeX on 5/4/2008 1:18:39 PM , Rating: 5
I'll bite. I watched the film and got exactly what I expected. A conspiratorial and biased piece that really isn't paying attention to the market and is historically manipulative.

The film begins with some old woman going "gee, why did those electric cars at the turn of the century lose to internal combustion? They were so quiet and clean!" Then it just moves on without answering the question, implying some kind of mysterious collusive force just killed them. In reality, electric technology hit a performance wall. It just couldn't offer the distance/top speed combination that combustion began to with its advancements. Then the film talks about smog, without ever addressing the geographic nature of smog, or the societal and growth benefit/cost ratio of fast and easy transit compared to the health risks.

The hippy implication is that pollution of any kind is simply an unacceptable cost to progress. In reality, technology allowed to go unimpeded invariably contributes to its cleaner successor. The industrial revolution was a time of dirty coal and few mandates. It was also a time of American's greatest rate of growth, which led to clean natural gas more quickly as a result. Internal combustion will lead to electric cars. It's only a matter of time, and the market is continually proven right, slowed only by government enabled special privilege policy which erodes competition and takes or diminishes capital through inflation and taxation.

Regardless of how hard one company may have tried in the 90s to prevent growing demand, if we grant that, the political climate and oil prices are beyond their control. They simply cannot prevent such demand from forming. Furthermore, it may prove to have been one of their largest business mistakes, which would run counter to the assertion that greed drove them to kill it off. Look at GM's recent earnings reports. These guys are getting killed. Meanwhile, since they've decided to ignore demand, companies with fresh capital are sprouting around everywhere and could end up replacing them: Aptera, Tesla Motors, etc. This is how the market works. The only way now that the oil companies could EVER stem the tide, is through government power. Only the government has the regulatory power to disallow a producer from selling a certain type of product under the pretense of protecting its people. The FDA does it all the time, and there are a couple of famous cases such as Stevia and the miracle berry where it was quite clear that people, enabled power through socialist idealism, were bribed into preventing a competing product from ever being chosen, the health implications of which could be staggering.

In conclusion, businesses just don't succeed from the tactics Naderists and regulationists often cite. Not without a government enabled conduit to legislate a special break, a special mandate, a coerced choice in the marketplace under the guise of protecting you. You just can't stop the success of a deserving product any other way. It has to be criminalized by government.

By Reclaimer77 on 5/4/2008 1:30:18 PM , Rating: 2
I agree completely.

Who killed the electric car ? I did. Because I won't buy one.

By kc77 on 5/4/2008 6:22:43 PM , Rating: 3
Ok I’ll bite back, first off the reason I didn’t debate with you earlier is your viewpoint of our economy. You are trying to tell me 1+ 1 = 3, so rather than correcting your fuzzy math I decided to let it go and recommend a movie you might enjoy. And even now I’m not going to diagram your statements fully it would quite literally take me far too long to straighten your usage of communism, socialism, capitalism, democracy, and of course “free market”. You use all of these socioeconomic ideals and they end up clashing all over the place in your posts, so rather than pulling them all apart I'm choosing to move past it.

Second you obviously didn’t watch the movie, because it spells out exactly why it hasn’t replaced the combustion engine. It doesn’t show mere conjecture. The documentary provides discussion with the actual owners of the car and what GM put them through to get those vehicles back. The movie doesn’t really talk about smog at all. The movie is about the socioeconomic impacts of the electric car versus the combustion engine. The environment hardly enters into the discussion at all.

You’ve got a lot of demagogues but they are paired with the wrong thing or more precisely should be associated with the antecedent of the same statement.

Hippys are to the environment as the “free–market” is to Hippys.

What I’m saying here is that the Hippy movement in the 60’s, while environment was one of their issues so was “live and let live”, and “freedom of oppression”. It’s the same mindset that certain people believe can be applied to economics, which is the most ignorant thing I have ever heard in my entire life. Every area of your life has rules. Why on earth would you want to deregulate Wall Street a place which sees trillions of dollars in transactions everyday and let some ethereal “free-market” nymph magically control markets? Yes in theory it works, but it doesn’t take into account human cost or human impact. The market forces, which are associated with “free-market” theories, move too slow and really just reflects and amplifies the change within the market. It doesn’t create change only humans can do that. First of all there just isn’t any such thing as a free-market. We had it once, but you know what it caused??…. The Great Depression!

So while we will eventually get to electric cars for sure, in order for us to do so we have to actually exhaust our oil resources. We are still quite a bit away from that in order to make any other technology viable. So while the technology is here, it’s been here for a long, long, time you will never see it until either someone forces car manufacturers to do it, or until there is some technological breakthrough that would allow third world countries to catch the U.S energy companies off guard. Like they did in the late 70's and early 80's.

By BansheeX on 5/4/2008 7:51:58 PM , Rating: 2
Your introductory paragraph is a huge dodge. I know what I'm talking about when I'm referring to free markets and I never even said "democracy" anywhere. To summarize my last post in simple terms, the electric car hasn't been killed, it's simply been delayed a little by business mistakes and bad governmental policy. The government is the only force capable of choice prevention in the criminalization of products, and mass debasement or control of its people's savings/capital.

Second you obviously didn’t watch the movie, because it spells out exactly why it hasn’t replaced the combustion engine. It doesn’t show mere conjecture... The movie doesn’t really talk about smog at all. The environment hardly enters into the discussion at all.

There was a lengthy section on smog and its adverse health effects at the beginning of the film. It really demonizes internal combustion without once being complimentary of what it's given us or heralding its technological victory over electric all those years ago. And somehow the movie expects us to blame internal combustion for Los Angeles being founded in a low basin area and getting as big as it has.

We had it once, but you know what it caused??…. The Great Depression!

Wrong, depressions are impossible with market-determined interest rates. We didn't have a depression before the Federal Reserve Act, we had it afterwards. Only the manipulation of interest rates by a self-serving or politically influenced human can cause a depression, usually in an overzealous attempt to avoid or delay a necessary correction (recession). Central banking is a communist plank and was resisted mightily by several Presidents for the first 120 years of our history. Since we went off of gold, the next one will be hyperinflationary. Now that I've watched your movie, you watch mine:

By mmntech on 5/3/2008 10:35:01 AM , Rating: 2
Ubuntu FTW! Besides, if you don't want to pay $300 for an Vista, just buy the OEM versions of Home Basic or Business. The only versions worth getting IMO, since you don't need that other crap. Basic can be hacked to get Aeroglass.

As for the RIAA, It's nice to see courts finally reining them in a little. RIAA's tactics do amount to unreasonable search and seizure in my opinion. However, I have a pretty good idea how these cases usually work. They'll appeal it to the state supreme court and if they don't get their way there, they'll appeal it to the US Supreme Court. Any one of these could overrule the lower court's decision.

By AlphaVirus on 5/5/2008 2:18:11 PM , Rating: 2
Basic can be hacked to get Aeroglass.

Basic has much less features than Home Premium, Professional, and Ultimate.

By kc77 on 5/3/2008 4:46:22 PM , Rating: 2
Not necessarily true. Operating Systems, more precisely computers are quickly becoming a commodity / essential good. Don’t think so, try to get a job by sending your resume via snail mail and in hand written format. I doubt you’ll get very far. In addition computers control just about every aspect in your life whether you physically see the technology or not. A computer, most likely Windows, controls everything from your water pressure, to the electricity within your home. Therefore, while not nearly as evolutionary as fire or heat (which to some is arguable) the operating system is very much an essential good.

This leads to your second point, once a good becomes a commodity such as electricity, the role of an monopolizing power over said commodity can be far more detrimental to consumer’s purchasing power and the right to choose. Windows XP is a prime example. Who is dictating it’s demise? It’s certainly not consumers. While consumers are delaying Windows XP’s demise it’s Microsoft at the end of the day that will have the last say.

By SavagePotato on 5/3/2008 4:52:51 PM , Rating: 1
Too bad you can go to an Internet cafe and use one for free. Or your local Library.

Saying ownership of a computer is some kind of essential service is quite possibly the stupidest thing ever.

By SavagePotato on 5/3/2008 4:55:25 PM , Rating: 1
Reverse those thoughts. Go to a library and use one for free, or to an Internet cafe.

Even career criminals in GTA4 know how to go to the Internet cafe.

By kc77 on 5/3/2008 5:06:27 PM , Rating: 1
Um, you are using non sequitur to prove a point. That fact that a service can be provided for free does nothing to change the effect of a service and in fact proves my point. If everyone didn't need it you definitely wouldn't be able to go to a library, which is a social service mind you, in order to get it. No where do I say "ownership". I said the service or good is essential.

By erikejw on 5/3/2008 6:57:46 PM , Rating: 1
I've actually tried to purchase a laptop with no OS and claimed I will use Linux.

They refused to sell me one, they claim the computer is inoperational without an OS.

A PC costed 3000$ for 20 years ago. The OS costed 300$.
Now the PC costs 500$ and the OS still 300$.
Fair price, no way.

By Duwelon on 5/4/2008 1:22:19 AM , Rating: 4
You are a moron

By nilepez on 5/4/2008 5:42:39 PM , Rating: 2
You're nuts. When you buy a $500.00 laptop, your OS adds less than $100.00 to the cost of the machine.

1. OEM Vista Home Premium doesn't cost $300.00.
2. Dell doesn't pay the same price for OEM copies of Vista
that you pay Newegg.

3. If they were actually willing to ship it without an OS,
they'd still charge you $500.00.

4. The reason they won't sell it without an OS, I suspect, is because they have to support the device, and the easiest way to make sure the device is to actually have an OS on it.

The same is true for companies, with respect to OS cost. They don't pay retail.

As for programs not working on vista, that may be true with vertical apps, but it's likely that that is cause because they were improperly coded. By that I mean that they didn't follow Windows XP coding specs.

I've seen some piss poor 3rd party vertical apps (you'd kill for MS software after using buggy this crash prone software), and I'd be shocked if any of it works on Vista.

MS isn't perfect, and I don't agree with their licensing practices, which preclude fair use (you should be able to install the OS on 2 machines, so long as they're not in use at the same time), but the current price of Vista Home Premium (under $100.00 at is not terrible. People seem to forget that Dos 5 was $50.00 (almost 20 years ago).

Is ultimate too much? You bet, but I'm not sure why anyone buys it in the first place.

By Viditor on 5/3/2008 8:22:39 PM , Rating: 2
anyone is free to charge whatever they want for a good (although that's not true - or shouldn't be - for any essential good, which an OS isn't);

An OS certainly IS an essential good, and has been ruled so by the Federal Courts (US v Microsoft).

In addition, Microsoft has been found to be a Monopoly, so they have limits to what they can charge because of anti-trust laws...

By jconan on 5/4/2008 4:52:21 AM , Rating: 2
even if people don't buy it. the company has to make up a reason why their products aren't selling and hence create a group called pirates as their scapegoats even if there aren't any pirates.

By Some1ne on 5/4/2008 3:23:41 PM , Rating: 1
So, if you think $300 is expensive, then don't buy it.

Exactly. Pirate it instead.

"We shipped it on Saturday. Then on Sunday, we rested." -- Steve Jobs on the iPad launch
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