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

By MrModulator on 5/3/2008 5:16:32 AM , Rating: 3
I don't buy into all the complaining from the music and film business.
The big movie companies are doing great!
Sales of cd;s for the big music labels may be down (but not by as much as they make you believe), but the competition from other medias (console games, mobile devices entertainment and so on) is much bigger today than 10 years ago.

And the artists make much more money from concerts since probably more people gets to know an artist thanks to file sharing(especially older artist that are re-discovered). And the ticket prices to concerts are really high nowadays, so they make big money from it...

But the people that really do suffer from piracy are the pc-gaming companies.
Most of them rely on just one game that has taken a couple of years to produce, a multi million dollar investment that gets crushed by piracy.

Yes you can download pirate copies of console games, but making use of it is much more unconvenient than just download an iso and mount it in daemon tools. Just look at the big difference in sales...

And they don't have the big money that the rich music or film industry have to hunt down the pirates.
Some companies are closing down due to piracy, like "Iron Lore" who made the "Titan Quest" games. Many others are focusing on the consoles where the profits are and where piracy isn't nearly as bad.

So think twice before downloading that copy of the latest pc-game, and do not complain too much that many titles (need I say GTA 4) are released only on the consoles (or maybe much later on the pc).

By Richlet on 5/4/2008 3:33:58 AM , Rating: 3
I agree with you about pc gaming. I admit I dl some titles, check them out. Some I'll even play through, but if it's the kind of game where there's no replayability to it, then I probably won't purchase. A good pc game that's definitely replayable, I'll spend my coin on after trying out a non-demo version for a while.

By AlphaVirus on 5/5/2008 2:38:00 PM , Rating: 3
I used to pirate the PC games until I built this same morale. I never realized the people and companies I was hurting. I never pirated console games because like you said it was much of an inconvience, but PC games I had no problem with it.

I also must say the only good that came from pirating Pc games was that I discovered a world of great underground style games. Surely not as big as GTA or UT3, but I would test them out and go buy them if I liked them. Now I only pirate if I want to test it out, and even then I try to purchase the games to support the developers.

Gaming studios bleed much faster than these music and movie companies, its very sickening how much they get paid. It has come to a time if I know someone pirates music, I just say "More power to ya" and keep on walking.

RIAA is a load of bs and if the music industry was really hurting from pirates, MTV wouldnt have Cribs and VH1 wouldnt have Lifestyles of the Rich and Famous.

"Well, there may be a reason why they call them 'Mac' trucks! Windows machines will not be trucks." -- Microsoft CEO Steve Ballmer
Related Articles
RIAA: CD Ripping is "Unauthorized Use"
December 17, 2007, 6:31 PM

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