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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 kc77 on 5/4/2008 6:22:43 PM , Rating: 3
Ok I’ll bite back, first off the reason I didn’t debate with you earlier is your viewpoint of our economy. You are trying to tell me 1+ 1 = 3, so rather than correcting your fuzzy math I decided to let it go and recommend a movie you might enjoy. And even now I’m not going to diagram your statements fully it would quite literally take me far too long to straighten your usage of communism, socialism, capitalism, democracy, and of course “free market”. You use all of these socioeconomic ideals and they end up clashing all over the place in your posts, so rather than pulling them all apart I'm choosing to move past it.

Second you obviously didn’t watch the movie, because it spells out exactly why it hasn’t replaced the combustion engine. It doesn’t show mere conjecture. The documentary provides discussion with the actual owners of the car and what GM put them through to get those vehicles back. The movie doesn’t really talk about smog at all. The movie is about the socioeconomic impacts of the electric car versus the combustion engine. The environment hardly enters into the discussion at all.

You’ve got a lot of demagogues but they are paired with the wrong thing or more precisely should be associated with the antecedent of the same statement.

Hippys are to the environment as the “free–market” is to Hippys.

What I’m saying here is that the Hippy movement in the 60’s, while environment was one of their issues so was “live and let live”, and “freedom of oppression”. It’s the same mindset that certain people believe can be applied to economics, which is the most ignorant thing I have ever heard in my entire life. Every area of your life has rules. Why on earth would you want to deregulate Wall Street a place which sees trillions of dollars in transactions everyday and let some ethereal “free-market” nymph magically control markets? Yes in theory it works, but it doesn’t take into account human cost or human impact. The market forces, which are associated with “free-market” theories, move too slow and really just reflects and amplifies the change within the market. It doesn’t create change only humans can do that. First of all there just isn’t any such thing as a free-market. We had it once, but you know what it caused??…. The Great Depression!

So while we will eventually get to electric cars for sure, in order for us to do so we have to actually exhaust our oil resources. We are still quite a bit away from that in order to make any other technology viable. So while the technology is here, it’s been here for a long, long, time you will never see it until either someone forces car manufacturers to do it, or until there is some technological breakthrough that would allow third world countries to catch the U.S energy companies off guard. Like they did in the late 70's and early 80's.

By BansheeX on 5/4/2008 7:51:58 PM , Rating: 2
Your introductory paragraph is a huge dodge. I know what I'm talking about when I'm referring to free markets and I never even said "democracy" anywhere. To summarize my last post in simple terms, the electric car hasn't been killed, it's simply been delayed a little by business mistakes and bad governmental policy. The government is the only force capable of choice prevention in the criminalization of products, and mass debasement or control of its people's savings/capital.

Second you obviously didn’t watch the movie, because it spells out exactly why it hasn’t replaced the combustion engine. It doesn’t show mere conjecture... The movie doesn’t really talk about smog at all. The environment hardly enters into the discussion at all.

There was a lengthy section on smog and its adverse health effects at the beginning of the film. It really demonizes internal combustion without once being complimentary of what it's given us or heralding its technological victory over electric all those years ago. And somehow the movie expects us to blame internal combustion for Los Angeles being founded in a low basin area and getting as big as it has.

We had it once, but you know what it caused??…. The Great Depression!

Wrong, depressions are impossible with market-determined interest rates. We didn't have a depression before the Federal Reserve Act, we had it afterwards. Only the manipulation of interest rates by a self-serving or politically influenced human can cause a depression, usually in an overzealous attempt to avoid or delay a necessary correction (recession). Central banking is a communist plank and was resisted mightily by several Presidents for the first 120 years of our history. Since we went off of gold, the next one will be hyperinflationary. Now that I've watched your movie, you watch mine:

"We are going to continue to work with them to make sure they understand the reality of the Internet.  A lot of these people don't have Ph.Ds, and they don't have a degree in computer science." -- RIM co-CEO Michael Lazaridis
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