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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 Mike Acker on 5/4/2008 7:53:44 AM , Rating: 2
The courts have consistently held that a copyright violation does not occurs until (a) a copy has been offered and then (b) taken by another party i.e. the copyright violation occurs when then transfer occurs

of course on a p2p net that's a little tricky to track

DMCA prohibits users from removing the copyright protection from media and provides harsh penalties for violation

so if ya rip yer music and post it on a p2p net you might be prosecuted for making the unauthorized copies,-- and of course you are a sitting duck because on p2p you have published the un-authorized copies and advertised same

why copyright holders have not taken this approach to enforcement is a puzzle to me

copyright and patent laws are a good thing. by protecting creativity we encourage the capital needed for development

yes, the mammon is suppressive at any opportunity. and he will generally try to suppress creativity when he can so that he can continue to milk the cash cows that he has already rounded up and brought under his control. That is the mammon likes to develop and maintain monopolies

we do not want the mammon to create and to maintain monopolies or to suppress generative systems

but control of the mammon is difficult and expensive: the collective power of the people, i.e. the power of government is necessary.

unfortunately the mammon generally controls the government even while claiming the government is a "democracy" that is "for the people"

correction requires collective action on the part of the people and collective action requires communication and leadership

fortunately the Internet has trashed the mammon's monopoly on the news and communication industry. and that is a Good Thing, a Very Good Thing, indeed. This has created an open window of communication by which we might significantly restore control of government to the hands of the people.

continued abuse of the internet may result in government intervention,-- for the safety and security of the people, of course

Zittrain, i think, gets at this topic in his new offering "the future of the internet and how to stop it". i've not read his work yet, just listened to his interviews over NPR

the internet of course was developed by a very special group of people and i don't think the problems we face today in misuse were an issue that needed attention during the original development

my how times have changed!

my impression -- for whatever that's worth ( tee hee ) -- is that the industry associated with the internet needs to move to suppress mis-use, and needs to get this done -- before government does it for us -- for our security and safety, naturally

"A politician stumbles over himself... Then they pick it out. They edit it. He runs the clip, and then he makes a funny face, and the whole audience has a Pavlovian response." -- Joe Scarborough on John Stewart over Jim Cramer
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