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Is "Making Available" Copyright Infringement?

kdawson posted more than 7 years ago | from the RIAA-theory dept.

The Courts 320

NewYorkCountryLawyer updates us now that the legal issue — is it copyright infringement merely to "make available" a copyrighted work? — has been argued by the attorneys in Elektra v. Barker (on January 26). Whichever way the ruling goes it will have a large impact across the Internet. Appeal seems likely either way. No ruling has issued yet but "a friend" has made the 58-page transcript "available" (PDF here).

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320 comments

Slippery Slope (4, Insightful)

brian.gunderson (1012885) | more than 7 years ago | (#18171584)

Between this, and people being held liable for the actions of their neighbors using their open wi-fi networks, it makes me scared to think what will come next...

Re:Slippery Slope (4, Insightful)

Tancred (3904) | more than 7 years ago | (#18172020)

Yeah...and I haven't heard a specific definition of "making available" yet. Is an inadvertantly shared Windows folder making its contents available? Is leaving my iPod unattended making available the music on it? Is not patching the latest remote security hole in my system fast enough making available everything on my hard drive?

Re:Slippery Slope (1)

chaoticgeek (874438) | more than 7 years ago | (#18172086)

I leave my CDs out at school in my dorm room and any of my room mates could walk up can take them. Just because they are on my desk does not mean I'm leaving them out for people to copy. Is that making them available. Someone breaking in and stealing my CDs or mp3 player is that making it available?

Re:Slippery Slope (1)

brian.gunderson (1012885) | more than 7 years ago | (#18172230)

...if your computer gets infected with a SpamBot, are you guilty of 'making available' all the nasty (and possibly illegal) things that your zombie-PC is spewing across the interwebs? Kinda makes you think.

Distribution versus "making available" (3, Interesting)

PIPBoy3000 (619296) | more than 7 years ago | (#18172368)

From the article:

As an example, they argued: "Companies routinely include in their Web pages hyperlinks that enable persons to navigate easily to other sites throughout the Web by use of browser software. Indeed, the Web is a collection of hyperlinks. Even though the use of hyperlinks makes content located elsewhere available to a Web user, it does not constitute a distribution of that content under section 106(3)."
This would imply that Google "makes available" all sorts of things via a search engine. If it's illegal to make copyright content available, Google could be held liable for linking to the vast quantities of content available on the web. This could also mean things like reading a book in public where others could see the words, or listening to music in public where others could hear.

I realize the RIAA is focused on people "making available" copyright works via P2P networks, but the legal implications are pretty profound.

Re:Slippery Slope (1)

wolfeharte (1059238) | more than 7 years ago | (#18172604)

It seems that since they can't find a way to go after these people for theft, they're grasping at straws. Leaving your iPod unattended is a good example of where this could go bad... But why can't we make this go both ways? Are stores going to be held liable for theft by making their wares available and someone shoplifts? What about iTunes? Online stores in general? By making copywrited works available for use digitally, aren't they providing the "pirates" with the stolen goods in the first place? Should, then, we be holding the records company liable for making DRM enabled music available, which in turn creates the need for "stolen" and "pirated" goods in the first place?

Re:Slippery Slope (3, Insightful)

shark72 (702619) | more than 7 years ago | (#18172716)

"Yeah...and I haven't heard a specific definition of "making available" yet. Is an inadvertantly shared Windows folder making its contents available? Is leaving my iPod unattended making available the music on it? Is not patching the latest remote security hole in my system fast enough making available everything on my hard drive?"

This is slippery sloping, but it's understandable. If I were defending this case, I'd try the same approach. But, to answer your questions: no, no, and no. This case regards making MP3 files available on a P2P network without authorization from the copyright holder. Negligence and intent play a big part here, and I think it will come down to whether it's reasonable that the defendant should have known better when they installed and used their P2P software for its advertised purpose.

It's often called the slippery slope fallacy because there's often the incorrect inference that A will definitely lead to B. I don't personally think that if the judge rules for the defendant, it automatically means that somebody who misplaces their iPod will be liable... but as I mentioned, if I were defending this case, I'd try to draw that inference.

Re:Slippery Slope (0)

Anonymous Coward | more than 7 years ago | (#18172950)

I think maybe you're trying to describe Post Hoc Ergo Propter Hoc [wikipedia.org], a common logical fallacy which can be summed up as (from Wikipedia):

A happened, then B happened, therefore A caused B.

(It's also the name of a West Wing episode but that's not important here ;)

-AC

Re:Slippery Slope (1)

shark72 (702619) | more than 7 years ago | (#18173138)

Not precisely -- lots of folks around here are concerned that if A happens (the judge finds for the plaintiff in the case of the P2P user), then B will happen (it will be illegal to lose your iPod, or libraries will be outlawed, or any number of other silly outcomes). B hasn't happened (and won't happen), so I think slippery slope is more appropriate than PHEPH.

Re:Slippery Slope (1)

bill_mcgonigle (4333) | more than 7 years ago | (#18172932)

Yeah...and I haven't heard a specific definition of "making available" yet. Is an inadvertantly shared Windows folder making its contents available? Is leaving my iPod unattended making available the music on it? Is not patching the latest remote security hole in my system fast enough making available everything on my hard drive?

Sure, whatever works.

I'm sure I'll butcher this quote, but it goes something like, "Show me a man who's lived 30 years and I'll find a crime for you to hang him by". --- some dead clergy-type guy

Re:Slippery Slope (1)

CellBlock (856082) | more than 7 years ago | (#18172376)

According to the terms of service of most ISPs, you ARE liable for your neighbors using your network. Your connection is your responsibility, and if someone uses it without your knowledge, then you have been negligent.

Re:Slippery Slope (1)

sgt scrub (869860) | more than 7 years ago | (#18173030)

I don't think there is anything slippery about it. The people who buy media share it via computers. Computers are connected to other computers. Computers and the lines connecting to the computers are connected to the power grid. The power grid is used by the companies that sell media. The media companies give money to the power company. The money that is given to the power company allows the power company the ability to make power available to the people that own the computers and the lines that connect them. Therefore, the media companies are liable for making media available.

sorry bad english (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18171588)


I finish being able to have toasting, putting of the Jorge, everything for above in the mess like a fritata!! ..evalGrin!

Library? (5, Insightful)

nairb774 (728193) | more than 7 years ago | (#18171606)

Did anyone think of a library making copyrighted materials available? (Sure it is likely to be more detailed then that but in the same manner is this where we are going?)

Re:Library? (1)

WetCat (558132) | more than 7 years ago | (#18171700)

Library usually count as an exception, and cannot be a useful example here...

Re:Library? (5, Insightful)

gstoddart (321705) | more than 7 years ago | (#18171842)

Library usually count as an exception, and cannot be a useful example here...

Well, except that media/publishing companies have been trying to have libraries removed as an exception. It is, in fact, a perfectly useful example -- because if someone gets a law passed which doesn't grant an exemption to libraries, really bad things (tm) will happen.

The poster was pointing out how exactly a library could run afoul of such things if the corporations had their way.

Cheers

Interesting idea - definition of a library (4, Insightful)

Weaselmancer (533834) | more than 7 years ago | (#18172102)

From Merriam-Webster: [m-w.com]

1 a : a place in which literary, musical, artistic, or reference materials (as books, manuscripts, recordings, or films) are kept for use but not for sale b : a collection of such materials

Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?

Re:Interesting idea - definition of a library (1)

mrchaotica (681592) | more than 7 years ago | (#18172312)

Is it legal to operate a private (as opposed to public, i.e. government-run) library? I know the first libraries in America were private, but I don't think any exist nowadays...

Re:Interesting idea - definition of a library (1)

jc42 (318812) | more than 7 years ago | (#18172528)

Is it legal to operate a private (as opposed to public, i.e. government-run) library?

Hmmm ... I have a "home office" with a lot of bookcases filled with books. I sometimes loan a book to a friend. Am I running a private library?

For that matter, if someone (perhaps a guest in my home or a burglar) takes a book without my permission, can I be prosecuted for copyright infringement? How about if they don't take the book, but just make copies of a few pages on the Xerox machine in the corner, and take those copies?

It seems to me that, what with the advent of "telecommuting", this sort of thing can only become more common. Can all be guilty of copyright infringement if we let anyone (even a burglar) have access to our home library?

And how is this really different from similar sharing (perhaps inadvertently) of the same copyrighted information on our computer's hard disk?

IANAL, so I'd like to find some coherent (i.e., non-legalese) explanations of all this. Yes, I've read a lot on the topic. What I've read has only made me more nervous about my future liabilities.

I used to think that helping educate others by sharing information was a Good Thing ...

Re:Interesting idea - definition of a library (1)

shark72 (702619) | more than 7 years ago | (#18172916)

"For that matter, if someone (perhaps a guest in my home or a burglar) takes a book without my permission, can I be prosecuted for copyright infringement? How about if they don't take the book, but just make copies of a few pages on the Xerox machine in the corner, and take those copies?"

I think you're being tripped up by the "unauthorized lending" you see on some copyright statements. I've never known it to apply to books. In other words, if you lend a book to a friend, or even if somebody takes one of your books, you're not liable.

In the second example, I think you're getting tripped up by stories you've heard about contributory copyright infringement. In the online world, there typically has to be intent to prosecute, and information providers are covered by the DMCA Safe Harbor -- that is, if the party that holds the copyrights jumps through a proscribed set of hoops to inform you of the violation and you take action, you're in the clear.

In the old-media world, I'd think the test would have to go way beyond this. Certainly, somebody breaking into your house and copying your stuff without your knowledge or authorization wouldn't come near that, so don't worry -- you're in the clear.

"I used to think that helping educate others by sharing information was a Good Thing ..."

Oh, it is. Share the stuff that you have created all you want. Additionally, fair use doctrine has an "educational use" clause that covers a good bit of information sharing. Naturally, downloading Pirates of the Carribean and seeding it is not "helping educate others by sharing information." It's copyright infringement, plain and simple.

Re:Interesting idea - definition of a library (1)

e4g4 (533831) | more than 7 years ago | (#18172572)

Private schools and universities have their own libraries, and generally only allow access to them to their affiliates.

Re:Interesting idea - definition of a library (1)

juan2074 (312848) | more than 7 years ago | (#18173076)

Damn it!
Now I must move my library to the Uruguayan consulate.

Re:Interesting idea - definition of a library (4, Insightful)

drinkypoo (153816) | more than 7 years ago | (#18172434)

Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?

Because in order to play it on your computer, you must make a copy, whereas the library lends you the copy, depriving them of their sole copy, and they lose if you do not return it. This is what the media companies want, so that libraries keep having to buy content.

Of course, it's also why they want to prevent you from making your legally protected backup copies for personal use.

Re:Interesting idea - definition of a library (1)

Laur (673497) | more than 7 years ago | (#18173240)

Because in order to play it on your computer, you must make a copy, whereas the library lends you the copy, depriving them of their sole copy, and they lose if you do not return it.
If I borrow a CD or DVD from the library and play it on my computer, I am also making a copy on my computer.

Re:Interesting idea - definition of a library (1)

GeckoX (259575) | more than 7 years ago | (#18172472)

Simply because at a library, there is a reasonable guarantee that only one person at a time will ever have access to any given resource. Further, for a resource to actually leave the library, it will be tracked.

Not saying that could not be done with a share folder, but there are a lot more problems in enforcing this.

Re:Interesting idea - definition of a library (1)

shark72 (702619) | more than 7 years ago | (#18172788)

"Sounds exactly like a share folder to me. I wonder why nobody has used this as a defense before?"

I don't think it would pass the laugh test in a court. Using a P2P program requires duplication. Libraries do not -- they make copy machines available, but there's usually a sign warning you about copyright violation, and, of course, it's quite easy to use a copy machine for purposes that fall under fair use doctrine. Compare this to a P2P app -- if somebody else on the network has a share directory which includes material that's there without authorization. To get it, you must make a copy and most likely infringe upon the copyright.

Re:Interesting idea - definition of a library (1)

Oligonicella (659917) | more than 7 years ago | (#18173026)

Because a friggin' folder doesn't preclude you from copying. Oh, wait, accessing the contents automatically copies them. Hmm. Not at all like a library. Mayhap that's the reason, it ain't the same.

Re:Library? (0)

Anonymous Coward | more than 7 years ago | (#18172222)

Roger that! As soon as people figure out that Libraries can and often do carry movies and music, people will start frequenting their libraries more when they are loading up their iPods.

Re:Library? (1)

anthro398 (729495) | more than 7 years ago | (#18172926)

Well, except that media/publishing companies have been trying to have libraries removed as an exception.
That's not really true. While it is true that some companies have, at some point, pushed to remove section 108 [copyright.gov] of the Copyright Act, many others are well aware that copyright is a blunt instrument and needs clarification. The Library of Congress, through the National Digital Information Infrastructure Preservation Program, has convened a study group [loc.gov] composed of experts from all sides of the debate to work to clarify the rights and responsibilities of libraries regarding copyright laws. Though the group has not announced a final resolution, all indications are that the publishers and media providers are being quite cooperative and mostly hold libraries in high regard.

Re:Library? (3, Insightful)

Maxo-Texas (864189) | more than 7 years ago | (#18171864)

There is nothing magical about a library. They started as private citizens- not as government entities.

Hell, I could offer up my collection of PDF's as a library if you want.

This is about a fundamental extension of copyright law that would have prevented libraries if it had been present when they started.

Re:Library? (1)

taskiss (94652) | more than 7 years ago | (#18171904)

A library is not an appropriate example, but I'd bet that radio and tv are.

While they are licensed to air their material, they also make it available for people to copy.

Re:Library? (1)

KDR_11k (778916) | more than 7 years ago | (#18171970)

I don't think that's the kind of making available the article is talking about. A library still only hands you a physical copy that was created by an authorized copier. What's being argued is whether it's illegal to make a file you aren't authorized to copy available for upload to a P2P application. AFAIK anything in a shared folder is considered public so I'd assume this would fall under either a public performance or a broadcast, both of which require authorization by the copyright holder.

Re:Library? (4, Insightful)

east coast (590680) | more than 7 years ago | (#18172144)

Libraries lend materials, files on the internet are copied.

Granted, plenty of people copy works from the libraries outside of fair use standards but that's not the intended use by the library.

This is probably the same reason the Zune "Squirt" (is that the right term for it?) thing is kinda winked on, it's not a permanent copy but rather a lending of materials.

Re:Library? (1)

xappax (876447) | more than 7 years ago | (#18172796)

Libraries lend materials, files on the internet are copied.

A lot of university libraries now provide "electronic documents", which are either emailed to you or made available via a URL when requested. These are electronic versions of copyrighted printed documents, and they're copied, or at least "made available" in a highly copyable format (like a web page) to anyone.

Then again, they may have some special arrangement with certain copyright holders, which would explain why everything isn't available digitally, but I'm not sure...

Illegal to not report a crime? (4, Interesting)

biocute (936687) | more than 7 years ago | (#18171650)

If you intentionally make your assets unprotected, and when stolen, you don't report to the police and just get on with the life, would it be illegal?

I wonder what would happen if some broke into a house, instead of taking away CDs, he just copied them and left, would the house owner be liable for copyright infringement?

Re:Illegal to not report a crime? (4, Funny)

denis-The-menace (471988) | more than 7 years ago | (#18171766)

re: would the house owner be liable for copyright infringement?

Only if he runs off with the original and leaves you with a copy ;)

Re:Illegal to not report a crime? (4, Interesting)

Ckwop (707653) | more than 7 years ago | (#18171886)

If you intentionally make your assets unprotected, and when stolen, you don't report to the police and just get on with the life, would it be illegal?

No, I would say it's more like this. Suppose I built a device that could duplicate any physical item given to it exactly. Further suppose that people started using this device to duplicate cars so they didn't have to pay buy one from a car dealer.

The car dealers, facing the total destruction of their business, decide to lobby Congress to pass laws that makes these duplication devices illegal. This, however, doesn't work. People are still making copies in the black-market.

So again, through the courts and congress they attempt to make putting a car in any public place a crime.

I know this is a bat-shit crazy analogy but to some extent that is because what the music industry is doing is bat-shit crazy.

What really hurts is that Congress and the RIAA have totally missed just how revolutionary the Internet is. You'd expect the RIAA to be blind to this because of their own vested interests but for Congress to so completely miss the point is unforgivable.

Simon

Re:Illegal to not report a crime? (1)

Cylix (55374) | more than 7 years ago | (#18172186)

In your scenario...

I immediately invest everything I have in these magical duplication machines.

Next, I design a car that is made completely from crack.

I set the device to loop and I'm a very very rich man.

Re:Illegal to not report a crime? (1)

multisync (218450) | more than 7 years ago | (#18172924)

I know this is a bat-shit crazy analogy


No car analogy is ever too bat-shit crazy 8^D

Re:Illegal to not report a crime? (1)

paeanblack (191171) | more than 7 years ago | (#18171918)

I wonder what would happen if some broke into a house, instead of taking away CDs, he just copied them and left, would the house owner be liable for copyright infringement?

If the owner derives financial benefit from the infringement, then yes, the owner could be held responsible for contributory and vicarious infringement.

http://digital-law-online.info/lpdi1.0/treatise14. html [digital-law-online.info]

Re:Illegal to not report a crime? (1)

denis-The-menace (471988) | more than 7 years ago | (#18172342)


So if the burglar steals copies of your CDs and money falls out of his pockets on the way out, the homeowner is said to have "derives financial benefit from the infringement".

Now I know I'm being facetious but with the way the music mafia has been able to bend/buy laws to suit them, you never know.

http://dictionary.reference.com/browse/facetious [reference.com]
(In case a lone Digger visitor gets confused with grammar...)

Re:Illegal to not report a crime? (1)

paeanblack (191171) | more than 7 years ago | (#18173262)

So if the burglar steals copies of your CDs and money falls out of his pockets on the way out, the homeowner is said to have "derives financial benefit from the infringement".

The homeowner is required to transfer possession of the money to the police and await any claim the owner may make upon the property. To not do so is simple theft.

The money certainly does not belong to the homeowner; it belonged, ostensibly, to the burglar. Just because somebody robs you doesn't give you a right to their property.

Re:Illegal to not report a crime? (0)

Anonymous Coward | more than 7 years ago | (#18172160)

If you intentionally make your assets unprotected, and when stolen, you don't report to the police and just get on with the life, would it be illegal?

If a tree falls in the woods, and it hits a mime, does anyone care?

Is making available copyright infringement? (0)

Anonymous Coward | more than 7 years ago | (#18171662)

I don't know if it is. However, it should not be.

The unconserved nature of information makes things get really absurd otherwise. The criminalization of reasonable actions across the board combined with making illegal any hardware/software that doesn't refuse to obey you and/or rat you out, and ultimately a huge gulf between what vendors offer and what consumers want.

The simpler solution is to just allow it and build new business models around the new technological landscape. In the long run it winds up working better for everyone.

Law (0, Offtopic)

edwardpickman (965122) | more than 7 years ago | (#18171708)

No matter your opinion of copyright law transporting illegal goods is illegal, otherwise drug mules wouldn't be prosecuted. Is it the same? Of coarse not it's an extreme example. Say person "A" steals government secrets while person "B" transports information to person "C". By the law they are all at fault. It really doesn't matter how the information is transferred. Service providers aren't at fault because they aren't aware or involved directly in the specific transfer. I'm not going to weigh in on the right or wrong aspect of copyright but so long as the laws are what they are you can't provide copyrighted material without the permission of the copyright holder.

Re:Law (1)

zzsmirkzz (974536) | more than 7 years ago | (#18171796)

Yeah, but I think the point trying to be made here is whether or not you can point or direct someone to copyrighted material that someone else is providing (without the permission of the copyright holder). Is providing someone a link to a copyrighted clip hosted on YouTube or any other server, copyright infringement and I'd say no.

I think not... (0)

Anonymous Coward | more than 7 years ago | (#18171934)

If 'making available' is a violation is it illegal for me to loan a paperback to a friend ?
Is it a copyright violation to 'make available' if no copy is never actually made ?

Re:Law (0)

Anonymous Coward | more than 7 years ago | (#18171958)

"No matter your opinion of copyright law transporting illegal goods is illegal, otherwise drug mules wouldn't be prosecuted."

Yeah, but pointing out the location of illegal goods is not against the law.

Re:Law (1)

Alchemar (720449) | more than 7 years ago | (#18172396)

The problem with your analogy, is that transporting copyrighted goods is not illegal, copying them without permission is. When you buy a book at the book store, they are handing you a copyrighted piece of work. They do not have the right to make copies of that work, but that is not what they are doing, they are transfering ownership of a copy which is perfectly legal under copyright law. To complete your analogy, person 'A' would have to be arrested before person 'B' picked up the material from person 'A' with no evidence that person 'B' was going to have any contact with person 'A' and person 'A' had a legal and legitimate reason to have that information in his possession. Analogies should make a problem easier to understand, your comparison can only be made valid by making the analogy more complex than the original problem.

Something to consider ... a web page is a copyrighted work. Since you are no longer required to register copyright in order for them to be enforced, then all web pages are copyrighted. If you download a web page then you are making an electronic copy of that web page in your computer memory. Do you have written permission to be viewing this website? The bottom of the page I am typing states that comments are owned by poster and has a copyright notice to OSTG.
 
    Unless there are severe consequences, I think it is a really bad idea to proscecute on the basis of "could have" commited a crime. For the cases where there would be substantial and irreversible harm for someone to commit a crime, then pass a seperate law making it illegal to plan or intend to commit that crime. Attempted murder is illegal, not because murder is illegal and they attempted it, but because "attempt to commit murder" has been put on the books as a crime. There are good reasons for this law. "Attempt to speed" would probably not be a good law for the books. The consequences for speeding can be very severe, but a large majority of the time, there is no reason not to actually wait until the person commits the crime of speeding before writting the ticket. If someone is going to have such a significant loss of income from copyrighting, there should be enough infringment, that they should be able to locate at least one person that it was downloaded to. If you do not have one piece of evidence that the copyright has actually been infringed, then send a C&D letter, if it is ignored, then file to have a court order for the material to be removed and court cost paid. If you still don't have any evidence of actual infringemnent by the time that this takes place, then this was all that was neccessary anyways.

Knowingly and unknowingly? (2, Interesting)

140Mandak262Jamuna (970587) | more than 7 years ago | (#18171720)

If they rule "making available" some copyrighted work, even if it is done unbenown to the owner of the computer, well, whoever you are who gave a lift to the hitchhiker who was later found to be the serial killer, tremble in your feet. They are going to come after you with "aiding and abetting".

slippery slope (5, Funny)

User 956 (568564) | more than 7 years ago | (#18171738)

NewYorkCountryLawyer updates us now that the legal issue -- is it copyright infringement merely to "make available" a copyrighted work?

This of course, leading to 2011's legal dilemma: Is it copyright infringement to "view" a copyrighted work?

Re:slippery slope (2, Interesting)

CheeseTroll (696413) | more than 7 years ago | (#18171920)

Not if you have the properly documented invoice readily available, proving that you paid for the privilege of viewing said copyrighted work. ;-)

Where it will really get tricky is if consumers begin to copyright our invoice copies, and charge the publisher for the right to view them.

Heck, I'll just copyright my own face while I'm at it. Stop looking at me!

Sad, but true... (0)

Anonymous Coward | more than 7 years ago | (#18172206)

There isn't even one new distribution technology that the media hasn't hated, lobbied against, and eventually tried to control. From VCRs to DAT tape and HD-DVD, they've always kept wanting more.

So I should hope that they don't believe that "making available" == "making copies" or we really will end up with things the way you describe :( Hopefully, even if they do go this foolish route, they'll *at least* have to require something like actively encouraging people to copy the files. But I wouldn't count on it.

Oh well. I, for one, have lost all respect for copyright law already. They should just be glad I'm not a little younger and lot more foolish, or I'd be tempted to do something childish, like hack the RIAA's website with a picture of a hand giving them the finger and the words "COPY THIS!" under it :-)

Re:slippery slope (1)

gstoddart (321705) | more than 7 years ago | (#18172464)

This of course, leading to 2011's legal dilemma: Is it copyright infringement to "view" a copyrighted work?

Only if you don't submit to the mandatory memory wipe which will prevent you from telling anyone else about it, or remembering the details of it.

It also has the benefit that you don't realize you've paid to see Waterworld already 6 times, and that it sucked all of them. Think of the additional revenue stream they will have!! :-P

"Man, what a crappy movie ... ZAP ... Hey, look, what's this Waterworld thing?" Somewhere in there, is an Eternal Sunshine [imdb.com] joke. (But, I bet if they could they would.)

Cheers

Moot (2, Insightful)

Sigma 7 (266129) | more than 7 years ago | (#18171756)

If something is "made available", then distribution is only one step away. As you know, items that are "available" are easily obtained - and "evidence" of copyright violation can be done by downloading or obtaining the copies in question.

This case in question sounds like it's arguing a technicality - which is trivial for any lawyer to work around by showing that copies were made from the site (rather than simply being posted.)

Re:Moot (2, Insightful)

amRadioHed (463061) | more than 7 years ago | (#18171894)

I'd say it's a little more than a technicality. If the RIAA can't be bothered to gather the appropriate evidence before raising allegations against someone then the case should be thrown out. The burden of evidence is on them to prove any wrongdoing was committed.

Re:Moot (0)

Anonymous Coward | more than 7 years ago | (#18171908)

Thank God you're not MY lawyer.

Re:Moot (1)

radarjd (931774) | more than 7 years ago | (#18172090)

If something is "made available", then distribution is only one step away. As you know, items that are "available" are easily obtained - and "evidence" of copyright violation can be done by downloading or obtaining the copies in question.

This case in question sounds like it's arguing a technicality - which is trivial for any lawyer to work around by showing that copies were made from the site (rather than simply being posted.)

I think you're exactly right -- the point of this case is really about the evidentiary problem of showing actual distribution. The copyright law makes distribution of a work the exclusive right of the copyright holder 17 USC 106(3) [cornell.edu]. That is clearly an infringment. This case is trying to lower the requirement of showing actual distribution to merely making available. You would think that showing actual distribution would be fairly simple (that is, just download the file yourself), but it appears that in practice it's not so easy.

In any case, there doesn't seem to be a compelling reason here to classify "making available" as "distribution" as a matter of law. We'll see what the court thinks.

Re:Moot (3, Insightful)

terrymr (316118) | more than 7 years ago | (#18172214)

The problem for the RIAA is that their investigator can't download the song himself and then use that as an example of infringement because it is a legal impossibility to violate your own copyright. So the courts are being asked to find against somebody on the basis that somebody else probably downloaded the song. This is a poor standard of proof.

Re:Moot (1)

Phoenix Rising (28955) | more than 7 years ago | (#18172994)

Except...
1) It's a third-party investigator, and
2) Distribution is the violation, not receipt.

Even if the valid copyright holder downloaded the available content, the person making the content available is the one doing the distribution, and hence the one violating the copyright.

What remains is proof that the person being sued is in fact responsible for the shared folder in question: was the sharing intentional or willfully negligent, and was the person named the one responsible for maintaining that system and the owner of that folder?

(PS, before someone posits it: it's also not entrapment; that's limited to government law enforcement...)

Re:Moot (0)

Anonymous Coward | more than 7 years ago | (#18172808)

RTFA -- They specifically stated that the RIAA cannot prove dissemination even ephemerally and has never even tried to do so.

They use bullying legal tactics and the appearance of impropriety (as interpretted by them) to extort settlements out of people. By traditional definition, actual copyright infringement doesn't occur until the copyrighted work is either illegally copied or distributed.

The danger warned of here is that the RIAA is basically trying to expand the definition of copyright into crazily broad terms. From my interpretation, it's roughly equivalent to the criminal code being expanded to say that if you leave your house unlocked, YOU'RE guilty of theft if someone else steals your stuff...

Testing proxy refresh_pattern (-1, Offtopic)

Oriumpor (446718) | more than 7 years ago | (#18171812)

please disregard. Since you know there's lots of stuff ignored here anyways, it probably will be but hopefully not since I have to get it to show up in the first place.

Re:Testing proxy refresh_pattern (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18171870)

ffs can't it not work just once, can't fix what ain't broke!

Re:Testing proxy refresh_pattern (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18172200)

break for crying out loud

How does this affect other sources? (4, Interesting)

Overzeetop (214511) | more than 7 years ago | (#18171822)

Software exists for OCR from camera sources such as cell phones. Would the presence of, say, a bookstore which allows patrons to browse the shelves and - presumably - photograph the pages be liable under this expansion? What are the special circumstances for libraries, and could they be considered liable under this distribution interpretation?

Re:How does this affect other sources? (1)

ZachPruckowski (918562) | more than 7 years ago | (#18171976)

How about this - the office of the student group I volunteer with has a photocopier that any of us can freely use. Similarly, we've got dozens of copyrighted magazines lying about (mostly Rolling Stone, since we do music stuff). By "making available" copyrighted material and a method of copying it, are we violating the law every time we don't have an advisor monitoring the office (about 12-16 hours a day, and all weekend)?

Re:How does this affect other sources? (1)

garcia (6573) | more than 7 years ago | (#18172056)

Software exists for OCR from camera sources such as cell phones.

Yeah, it exists but it fucking sucks. Have you ever used the software that does OCR from images? If you haven't try something like gocr [gentoo-wiki.com] for Linux and tell me how it worked out for you. Even if the OCR software available for cell phone images is 100x better, it will still be pointless.

depends on the copyright agreement (2, Insightful)

bug1 (96678) | more than 7 years ago | (#18171960)

Copyright gives the author exclusive rights over copying, they can attach other conditions (like money, only making 1 copy, not making it available) when they grant the rights to copy, but copyright is only supposed to be about copy rights... surprised ?

If the copyright agreement doesnt mention "making availabile" then copyright cant prohibit it.

But of course IANAL.

Re:depends on the copyright agreement (1)

Phoenix Rising (28955) | more than 7 years ago | (#18173210)

This is a really thin line.

If someone offers for sale (on eBay) an e-Book or PDF of a physical book, that comes perilously close to illegality, IMHO. Whether or not a copy was sent is a matter of timing... No barrier exists in this case to anyone downloading copyrighted material whenever they choose.

This is, in the end, about a legal technicality and about what the law currently states. Ruling against the RIAA would open up the absurd but possible scenario of an automated book publisher "making available" a book such that an anonymous user could click a button on the Internet, a press would start printing, and a robot would automatically ship the book without anyone knowing that anything had actually happened except the person pushing the button. Does that make the theoretical book publisher a copyright violator for making the book available, or is it only a copyright violation if they can catch a copy being shipped out the door?

IMHO, willfully offering copyright material is essentially solicitation or intent to commit a civil and/or criminal violation. The question here is: does the law recognize that right now?

Architecture? (0, Redundant)

Maximum Prophet (716608) | more than 7 years ago | (#18172060)

So if i build a building and someone photographs it, have I "made it available". If I display an artist's copywritten work in a lobby and the same thing happens, am I liable?

Re:Architecture? (0)

Anonymous Coward | more than 7 years ago | (#18173182)

Interesting point. Did you know that if you have a painting in the lobby of your building and, while filming a promotional video for your company, school, etc., happen to capture that painting in your video then you are infringing.

Probably. (0)

Anonymous Coward | more than 7 years ago | (#18172078)

Technically it is not illegal to advertise your services as a hitman or drug dealer. It only becomes illegal either when money changes hands or the act is committed. However, there is usually a lesser charge of "intent" that you can get nailed with. "Making available" would probably fall under that category. I am not a legal expert, but I would imagine there have been "intent to infringe" laws on the books for a while.

Besides, what is the point of "making available" if not to distribute? You don't make something available if you don't intend to distribute it (though I suppose this depends on exactly how you define "available").

Re:Probably. (2, Funny)

Applekid (993327) | more than 7 years ago | (#18172184)

Besides, what is the point of "making available" if not to distribute? You don't make something available if you don't intend to distribute it

Exactly. Why'd that hot secretary have to get so mad at me?

Re:Probably. (1)

Overzeetop (214511) | more than 7 years ago | (#18172288)

This may be one of those fine-line cases. Making a work available in meatspace may not cross the line, on the web probably does, and doing so on using P2P software (for which the primary intent is mutual distribution of files) definietly does. Not that I think the law actually says that, just that the practical application suggests it. Sadly, laws are finite in scope and all have loophole between intent and application. Depending on the situation it may work for you or against you. Laws written for physical media don't translate well to digital space where both delivery and reproduction costs are essentially zero.

man copyright is completely stupid (1)

circletimessquare (444983) | more than 7 years ago | (#18172188)

IANAL, but i would like a lawyer to tell me something:

is it possible to create something, and append a disclaimer to the effect of "this work is not bound protected or has anything whatsoever to do with the incredibly insipid copyright laws of the united states"

would that be legally binding?

ip law is so out of touch with reality that it seems to me that the only way to move forward is for content creators to explicitly opt out of the antiquated system. they will of course, reap vaster rewards for having unfettered access to their works

if that doesn't make sense to you as to why vaster rewards await those who jettison retarded copyright, then you just don't get it

Re:man copyright is completely stupid (1)

PitaBred (632671) | more than 7 years ago | (#18172424)

IANAL either, but I think that's called releasing your work to the public domain. It used to be quite common for most works to be public domain unless explicitly copyrighted, until copyright was amended to be automatically applied to everything [copyright.gov].

Copyright's real purpose.... (1)

JCOTTON (775912) | more than 7 years ago | (#18172236)

...is to encourage creation of new things, in literature and so on. It is not, necessarilly to make the creator rich. For example, the original copyright was issued to printers, so that they could print the Bible and be assured of some profit after all the labor was invested (with hand printing presses).

IMHO, the powers that be should try to BALANCE the so-called rights of the IP creator with the good of the public. The creator of the IP do not have inalienable rights. The creator has rights (that are granted by the powers that be), because it is in the best intrest of the public. The bottom line is that all such rights (copyright and patent) are granted because it is in the general public interest to do so. If a certain copyright or patent would not benefit the public, then it should not be granted.

Rubber Tires Never Break

Lazy Lawyer (0, Flamebait)

mandelbr0t (1015855) | more than 7 years ago | (#18172254)

The first "Ask Slashdot" was somewhat interesting. Now I'm tired of you. Don't you do any real work?

You know the law better than we do, and I'll bet you already know the answer. Libraries and Video Rental stores are all over the place. I'm guessing they're legal. If you lived in Canada, it's legal to have a "Shared Folder" accessible on the Internet. Does that constitute "making available?" I think you've deliberately asked the question in a vague way to promote pseudo-legal discussion, in much the same way that an artist plays their muse; at some point, something interesting appears. But it's all wrong and needs to be reworked by the "master". I, for one, don't think that's an appropriate way to create art. After all, it's the muse who came up with the original idea and the artist that gets paid for it.

So please, NewYorkCountyLawyer, don't make me start going through the articles in Firehose again to vote down your incessant questioning. Once should have been enough for you.

Collapse? (1)

Frosty Piss (770223) | more than 7 years ago | (#18172276)

Somewhere in the neighborhood of 20,000-25,000 suits have been brought to date, with hundreds of new complaints filed monthly.

What would happen if those hundreds of new complaints filed monthly decided to fight? Could the RIAA handle the load? Or would they collapse under their own weight?

Define "Make Available" (1)

jhfry (829244) | more than 7 years ago | (#18172362)

If my computer is connected to the internet, then I am making copyrighted works available... is there a level of effort required? If so, how do you quantify the level of effort necessary? So I go to court and say, I didn't know I was sharing Britney's new collection of crap, how will they determine if what I did was intentional or not. How do you differentiate intentional and unintentional release of copyrighted works. I could easily prevent others from accessing such works from the average hacker... however my mother doesn't stand a chance... so can she get away with more than I can?

I think in the world of computing, it is not reasonable to expect a user to have a certain amount of knowledge, and without such knowledge there is a great potential for copyright violations do to simple ignorance. And what counts as irresponsible behavior? Is it irresponsible to download files from a p2p network? Not if your intent is to download free works... but then what happens if your client indexes all of the media on your system and makes it available to the public without your knowledge. I know better, but most users do not.

Re:Define "Make Available" (1)

jhfry (829244) | more than 7 years ago | (#18173046)

I apologize for all of the terrible typos and whatnot in the parent... I was interrupted by my boss and had to send quickly.

What part of COPY is confusing? (1)

sjbe (173966) | more than 7 years ago | (#18172498)

Let's break the word down. We have "copy" meaning to make a duplicate of and "right" meaning the creator retains some rights regarding who can make and distribute those copies. What could copyright possibly have to do with making a work available? Libraries make works available. Has nothing to do with copyright infringement. Likewise Google makes works available but it just points out where they are. Are we seriously entertaining the notion that a figurative card catalog is copyright infringement?

I understand people wanting to protect their copyrights. Despite some of the excesses that have arisen, copyright is a good thing. But this sort of lawsuit is just a waste of everyone's time, energy and money in addition to being a blatant power grab. I guess I shouldn't be amazed at how low some people will stoop for a dollar.

Re:What part of COPY is confusing? (1)

thenextpresident (559469) | more than 7 years ago | (#18173188)

Copy, in this context, doesn't mean "to duplicate".

http://dictionary.reference.com/browse/copy [reference.com]

1. an imitation, reproduction, or transcript of an original: a copy of a famous painting.
2. one of the various examples or specimens of the same book, engraving, or the like.
3. written matter intended to be reproduced in printed form: The editor sent the copy for the next issue to the printer.
4. the text of a news story, advertisement, television commercial, etc., as distinguished from related visual material.

The rights to the copy.

Melodrama (0)

Anonymous Coward | more than 7 years ago | (#18172534)

"Whichever way the ruling goes it will have a large impact across the Internet."

Perhaps this should have read,

"Whichever way the ruling goes it will have a large impact across the Internet - for those people living in the US"

Last I heard, the Inet is worldwide. Go figure.

What is a room with 1 copy machine and 1 book (1)

jbossvi (946552) | more than 7 years ago | (#18172562)

If the courthouse has a copy machine and there is a copyrighted book next to it. Does that make the courthouse liable under the "Making Availible". After all anyone could start making copies.

Guilty as charged (-1)

Anonymous Coward | more than 7 years ago | (#18172580)

People that get those "shakedown" lawsuit letters *know* they are guilty anyway. C'mon.

No one is saying that "making available" includes just having hyperlinks to other sites that host the illegal material. You don't have to be a genius to understand what "making available" means. Those who want to mire any debate in nitpicky semantics and endless "what if" scenarios, are almost always the guilty ones, and/or the ones with the vastly inferior argument.

"Making available" means all those ways that you are currently breaking the copyright laws - secured ftp, bittorrent, freenet type networks, etc. Breaking the files up into encrypted bits and pieces and then scattering them around is only intended to not break the letter of the law, not the spirit. It has the same consequences.

I'm so sick of people feigning stupidity just to justify not having to pay for movies, tv shows, software, and porn downloads. Suck it up and acknowledge you are a thief and someone who covets and takes things which he has not paid for. Say this with me: "I am not a moral man".

Analogy to Export Restrictions (1)

scruffy (29773) | more than 7 years ago | (#18172586)

As a possibly useful analogy, something you can download from a web site is subject to export restrictions (http://www.bis.doc.gov/licensing/exportingbasics. htm [doc.gov]) whether it is actually downloaded or not. The analogy then is that making copies available over the internet is subject to copyright restrictions, whether copies are made or not.

Revolution... or revolutionary? (1)

cdrguru (88047) | more than 7 years ago | (#18172656)

The problem here is we are looking at vast areas of potential massive destruction in the economy. Sure, if you are interested in getting stuff for free, this is a great time to be alive. If you work for any company involved in the distribution - for profit - of materials that can be in digital form, you should be concerned. Concerned to the point of getting a different job.

Let's say you work for a book publisher. Today it is impractical to redistribute a book that you buy in a book store. And books in digital form aren't generally sold or not sold without some kind of protection. This is likely to change. With today's attitudes about copying and even publishing, the big-name authors are likely to skip the book publishers completely. Unknown authors aren't going to have much of a chance except giving their stuff away on myspace. Better kiss that job at the publisher goodbye.

Oh, and the ad agency that the book publisher uses is going down the tubes as well. You see, individual authors aren't going to have the money to pay for advertising on the same scale. Any other services for the publisher are going to go down with them - ink, paper, financial services, managing the employee's 401K plan, and so on and so forth. Huge ripple effects.

Similar things will happen with music and movies. It is almost certainly too late to put the genie back in the bottle. We have almost a generation that believes respecting copyright is just somehow "wrong". And today, copyright is nothing more than a question of respect.

Yes, we are going to see battles like this, trying to enforce existing laws with stiffer and stiffer penalties. But the Internet is pretty much consequences-free. There might be a few people that get caught, but compare this to the millions or hundreds of millions of people that aren't getting caught. It will become like speeding where enforcement is on alternate Tuesdays for a quota and ignored the rest of the time. People get caught, but everyone speeds no matter what.

I think with the current trends we are likely to see more and more "enforcement" and less and less revenue. The "music business" is just about ready to throw in the towel - iTunes will still sell stuff to people that think that is the only way to put music in their iPod but the rest will just copy for free.

The question that needs to be asked is where will all those people work when Sony, EMI, BMG and others close their doors? We're not talking about "artists" but programmers, accountants and secretaries. The guy packing boxes in the shipping department. All of these people are going to be doing something else soon.

Re:Revolution... or revolutionary? (1)

Applekid (993327) | more than 7 years ago | (#18172960)

All of these people are going to be doing something else soon.

So, you're admitting that piracy costs people's jobs?

Not that I'm agreeing, just want to confirm what I took from your post is what you intended to send.

Re:Revolution... or revolutionary? (1)

CharlesDonHall (214468) | more than 7 years ago | (#18173190)

The question that needs to be asked is where will all those people work when Sony, EMI, BMG and others close their doors? We're not talking about "artists" but programmers, accountants and secretaries. The guy packing boxes in the shipping department. All of these people are going to be doing something else soon.

The root of the problem is that those companies have a business model that involves charging $12.99 for a dime's worth of music. That's not sustainable, and sooner or later they're going to have to move to a more realistic pricing structure. When that happens, yes, people will lose their jobs.

But the lost profits don't just flushed down a toilet somewhere. Every time a consumer pays 10 cents to download an album, she has an extra $12.89 to spend on something else...maybe the money gets spent at a restaurant, or saved up for a vacation. So those industries will grow, and they'll have to hire more programmers, accountants, and secretaries to handle the extra business.

Interesting stuff... from an author's view. (1)

CodeShark (17400) | more than 7 years ago | (#18172666)

Just read the whole darn set of arguments, and as an author I can argue this both ways, but I don't think either set of lawyers did a stellar job addressing the core issue.
On the plaintiff side, they quote and quote and quote and quote -- but don't deal with the real issue which is that the RIAA et. al seem to say "if I tell you where something is located, I am guilty of copyright infringement because I am making it available". They mention child-pornography as relevant -- but conveniently ignore the fact that to even own child-pornography under any circumstance is illegal, where owning music is legal -- but only if the music was obtained through legal means.


My take on this is based on the copyright's fair use doctrine -- as a copyrighted author I have the exclusive right to control everything about my work -- up to the point where someone has "fair use rights", such as quoting from my work in another study, etc. etc. [Instead of music, for example, let's assume it was a novel I wrote...] What if the quote was used within the concept of "fair use", but in a hyperlink to an illegal copy of the work, and the linking author didn't know that it wasn't a legal copy? Was the fair user guilty of copyright infringement because they inadvertently made my illegally copied work available?


On the piracy/law-breaking side though, let's say that someone knowingly "makes available" a copy of my work in a distributable manner that I did not authorize [AKA the Internet]. My belief is that they just infringed my copyright. Suppose however, that someone ten or eleven links down the chain says "hey, there's this great story at ________________ and has no idea (from an indexed title, etc.) whether or not the available copy is legally authorized or not. Sort of like a book buyer who buys a book in good faith from a reputable seller, not knowing that it is a fourth or fifth generation illegal copy, reads it, sells it to another used book store, which is where I find it. Who infringed the copyright? the initial bookstore, the buyer, the buyer when he sold, the second used book store?

Nope. The person I can sue is the person who originally created the illegal copy, made it available for distribution, and then distributed it, or the person who originally and knowingly "bought" or accepted the illegal copy. But I have to show the point of origin, and with file sharing networks and the multiplicity of perfect copies, that is almost impossible to do. Which is where this whole thing gets muddied. Obviously the copyright has been infringed -- but without a single definable point of origin, a specific instance of illegal copying and publication (AKA making available), etc. there just doesn't seem to be a provable case.


Any thoughts?

Re:Interesting stuff... from an author's view. (1)

Abcd1234 (188840) | more than 7 years ago | (#18172980)

On the piracy/law-breaking side though, let's say that someone knowingly "makes available" a copy of my work in a distributable manner that I did not authorize [AKA the Internet]. My belief is that they just infringed my copyright.

Well, as another (wannabe) writer, I would argue that's not entirely correct. If someone makes my work available for download, they don't violate copyright until their software copies my work and sends it to someone else, thus actually performing the act of distribution. Up to that point, it's merely advertisement.

The problem, in this case, is that the RIAA has no proof of actual distribution. All they have is evidence that the materials were "made available", and so they're stuck trying to prove that such an act constitutes "distribution".

Making available in the Internet age (1)

MassEnergySpaceTime (957330) | more than 7 years ago | (#18172688)

If they find that "making available" violates the distribution rights of copyright laws, then we could be in big trouble, because ANYONE connected to the Internet can easily become a distributor simply by making a shared folder and dropping a few files in there. That means there could easily be millions and millions of people breaking the law for being illegal distributors.

That's somewhat like setting the freeway speed limit to 45mph when every driver on the freeway safely and easily drives at 65mph. Such a strict speed limit automatically classifies everyone as breaking the law.

Is it? (1)

Spazmania (174582) | more than 7 years ago | (#18172934)

Is it shoplifting if you merely conceal that expensive jewelry in your purse and head for the exit or do you have to walk all the way out of the store first?

Wrong was of drawing the line.... (1)

cfulmer (3166) | more than 7 years ago | (#18172964)

So, let's say I make 100 copies of a CD (ignoring the fact that doing this is already infringement), put them on a table outside the local grocery store and then walk away. Is this distribution? Or, do I need to actually go through the step of physically handing them to people?

The answer is to the question posed in the OP is "Sometimes, making available is distribution." And, sometimes it's not. It turns on the specific facts of the case.

If I had to make a call, I'd say that making it available through bittorrent is distribution, but just putting it on a shared folder is not (unless I expect others to copy from there.) At one level, they're both just ways of sharing files. But, a lot more people will see your bittorrent site than will see your shared folder.

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