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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 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.

quote:
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.

quote:
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:

http://youtube.com/watch?v=iYZM58dulPE


"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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