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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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RE: HAHA!
By ViroMan on 5/3/2008 5:30:15 PM , Rating: -1
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.

Now it is true that they could pay some people to port it to Linux then use Linux but, that is an unthinkable action to them. I can hear it now...
" YOU want me to PAY money to someone to port one or more of my applications that is going to need constant support till its stable to a new OS, when the OS itself, isn't even stable or easy for my dim witted employees!? YA RIGHT!"

Linux is the way to go from the start so you don't have the pains of switching over later. Otherwise your trapped with windows in most cases. If you don't like Linux your apps can be switched over to windows much easier then the other way around.


RE: HAHA!
By omnicronx on 5/3/2008 6:18:18 PM , Rating: 2
quote:
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.


RE: HAHA!
By ViroMan on 5/3/08, Rating: -1
RE: HAHA!
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.


RE: HAHA!
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.


"I mean, if you wanna break down someone's door, why don't you start with AT&T, for God sakes? They make your amazing phone unusable as a phone!" -- Jon Stewart on Apple and the iPhone

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