Print 68 comment(s) - last by emmet.. on May 19 at 6:27 AM

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.

Comments     Threshold

This article is over a month old, voting and posting comments is disabled

The larger issue guys
By Reclaimer77 on 5/3/2008 3:17:23 AM , Rating: 1
The government has no right to make laws dictating what files can be in what folders on your personal computer. To even suggest such a thing is a slippery slope and frankly unconstitutional. Thank god for this judge, and thank god for Arizona. Proof that not all states in the west are run by idiots.

The RIAA basically tried to make it illegal to have any songs in your " Kazaa shared folder " because having them in there MUST mean your sharing them and they MUST be pirated. You guys realize the implication of that ? Its such a grey area and opens up all kinds of issues about rights and freedoms. It would have been a legal nightmare !

We really got lucky folks on this one. It could have effected all of us, not just the "pirates". We cannot allow the court system to get their foot in our PC's door and decide how we should arrange our files and folders.

RE: The larger issue guys
By Mike Acker on 5/4/2008 8:14:34 AM , Rating: 2
The government has no right to make laws dictating what files can be in what folders on your personal computer.

"The government has no right to make laws dictating what cars can be in your driveway"

I wouldn't want a stolen car in my driveway and i don't want any stolen data on my disk.

RE: The larger issue guys
By emmet on 5/19/2008 6:27:26 AM , Rating: 2
It is a category error to conflate the theft of a physical object with the unlicensed copying of information. They are not the same.

No matter which side of the argument one sits on, analogies to physical world objects and the theft thereof are specious, serving only to confuse the issue.

"Google fired a shot heard 'round the world, and now a second American company has answered the call to defend the rights of the Chinese people." -- Rep. Christopher H. Smith (R-N.J.)
Related Articles
RIAA: CD Ripping is "Unauthorized Use"
December 17, 2007, 6:31 PM

Most Popular ArticlesTop 5 Smart Watches
July 21, 2016, 11:48 PM
Free Windows 10 offer ends July 29th, 2016: 10 Reasons to Upgrade Immediately
July 22, 2016, 9:19 PM

Copyright 2016 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki