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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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Ok, so how about this situation
By Bender 123 on 5/3/2008 9:15:05 AM , Rating: 5
I just do not understand the whole way this works...
If I walk into a Wally World and take a CD, I get arrested. Wally World does not get sued by the RIAA for making their precious music available to me to steal.

I go to Wally World, buy the CD, rip it (shhhhhhhhhhh...dont tell the RIAA I am using my iPod...) and somebody steals the files from me while downloading some legal stuff from Kazaa. I get fined for making it available in the same passive manner as Wally World, but the downloader walks.

So no matter what, the lesson is to steal music from Kazaa to avoid trouble and just put the file in a non shared folder.

Or just do what I do and form a local /MP3 Cooperative. Its like a sneakenet version of file sharing at work. Twenty people get together and we will only buy one copy of a CD/Album off Amazon and bring it in on a flash drive to share with everyone. You want in you need to share...

RE: Ok, so how about this situation
By Reclaimer77 on 5/3/2008 11:27:44 AM , Rating: 2
So no matter what, the lesson is to steal music from Kazaa to avoid trouble and just put the file in a non shared folder.

Back in the day when I was into P2P I used something called Kazaa Lite ++. It made your shared folder invisible and unbrowseable to others.

By AlphaVirus on 5/5/2008 2:28:26 PM , Rating: 2
Whats the point of having Kazaa then, is it not a P2P program? If you hide everything you cant be a peer.

FYI I used Kazaa when it first came out and it had similar options, not sure how revamped it has become though.

RE: Ok, so how about this situation
By P4blo on 5/6/2008 12:58:49 PM , Rating: 1
This, is why the RIAA can never win. They have to accept the world changed and make the best of it. Every day it gets easier to data share in groups like you say. 1 album for 20 people? Lets see what that does to their profits. They would have no chance of detecting manual sharing either. That's why they're depending on scare tactics as much as possible.

I gurantee one day in the not so distant future those jackasses will all look back at this decade and the billions they pissed up in legal battles, sigh and say "Shoot! We sure flogged the shit out of a dead horse there didn't we fellas!".

RE: Ok, so how about this situation
By emmet on 5/19/2008 6:11:00 AM , Rating: 2
Indeed, or they'll just go out of business -- the RIAA represent the modern equivalent of the piano-roll vendors of the late nineteenth and early twentieth century who went out of business because they failed to adapt to the gramophone.

Those who do not learn from history...

"If you mod me down, I will become more insightful than you can possibly imagine." -- Slashdot
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