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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 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.

"Game reviewers fought each other to write the most glowing coverage possible for the powerhouse Sony, MS systems. Reviewers flipped coins to see who would review the Nintendo Wii. The losers got stuck with the job." -- Andy Marken
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