Did A Court Really Reject 'Making Available'? Sorta, But Not Quite…
from the not-quite... dept
Well, try to sort this one out. Slashdot, News.com and Ray Beckerman are all saying that the court in the Elektra vs. Barker case have dealt the RIAA a “setback” by rejecting the “make available” theory of copyright infringement. That sounds good, right? But hold on. The EFF (who filed an amicus brief against the “making available” claim), Billboard and ZeroPaid are all claiming a big RIAA victory in the decision. It would certainly appear that both claims are in complete contrast to one another.
The reality is somewhere in between — but leaning very much (unfortunately) towards the RIAA’s view of things. If you haven’t been following the debate, the RIAA (and the MPAA) have been claiming that they can sue someone for copyright infringement if they put unauthorized files into a shared folder, i.e., making those files available to be shared. Others, such as the EFF, point out that in order to violate copyright law, you have to show that someone actually distributed the unauthorized file, otherwise, it’s hard to see how they actually violated the law (i.e., no copy was made, thus no copyright violation). I find this latter argument more convincing, but it’s certainly unsettled law. Courts have mostly split on the issue, with some deciding one way and others deciding the other. The RIAA likes to claim that this is settled law — but it is not.
This latest case became a battleground over the issue, with both viewpoints getting a bunch of amicus briefs from third parties (including the Justice Department, who sided with the RIAA). It also took place in a court that is recognized as having a good grasp on copyright issues, meaning that it could weigh more heavily on other court decisions. So how did it actually play out when you have both sides claiming victory? Well, read the full confusing decision below to see:
What appears to have happened (and I’m no lawyer), is that the court was convinced that “publishing” and “distribution” are synonymous under the law. Thus, “publishing” content could be seen as “distribution.” The EFF’s response convincingly argues why this is wrong, but it’s a bit late now. Thus, under that definition, if the court is convinced that putting a file into a shared folder is the equivalent of “publishing,” then that could be a violation. However, the court hedges a bit, by saying that “making available” by itself is too broad and not clearly supported by the law (or the courts). So, as far as I can read it, it’s saying that “publishing” is distribution, so the RIAA (or any other copyright holder) can get away with showing evidence of publishing. At the same time, it argues that merely “making available” isn’t enough to be infringement, but if the copyright holder can convince the court that putting a file in a shared folder is the equivalent of “publishing” then that’s good enough. So, yes, technically the court said making available isn’t infringement, but it also expanded the definition of distribution such that it may just be a technicality that “making available” isn’t infringement. This ruling pretty clearly leans towards the RIAA’s belief in how copyright law should act.
Filed Under: copyright, distribution, elektra vs. barker, making available
Comments on “Did A Court Really Reject 'Making Available'? Sorta, But Not Quite…”
Let’s assume that downloading music is as the the RIAA implies, outright theft. Now let’s imagine I leave the windows of my car down in a crowded parking lot. There are a few CD’s in plain view in the car. I’m making it available, but only to those willing to commit a crime.
Making available should only be considered a crime if the material in question is controlled or prohibited. If i had alcohol on the seat, or child porn, or explosives, maybe even cigarettes, etc…
The tricky one is going to be CD’s with adult content where there’s an age limitation on purchasing. Making that available to anyone without an age validation could be a crime, but of course anyone can watch the video on youtube or visit the band’s myspace page so….
“Making available should only be considered a crime if the material in question is controlled or prohibited. If i had alcohol on the seat, or child porn, or explosives, maybe even cigarettes, etc…”
hold it!
You’re saying that if I leave a pack of cigarettes in plain view in my personal vehicle, or even my home, that it should be viewed as intent to distribute? Even though it would be a theft personal property, I would should guilty of making it available to get stolen?
“The tricky one is going to be CD’s with adult content where there’s an age limitation on purchasing. Making that available to anyone without an age validation could be a crime”
Well good thing there is a clear difference between selling goods and having the goods stolen from you.
In both your arguments you make the assumption that theft of physical goods and reproduction unlicensed intellectual property are defined under the same laws, and are both punishable under criminal law with equal weight , they are not.
Re: Putting words in someone's mouth
“”Making available should only be considered a crime if the material in question is controlled or prohibited. If i had alcohol on the seat, or child porn, or explosives, maybe even cigarettes, etc…”
hold it!
You’re saying that if I leave a pack of cigarettes in plain view in my personal vehicle, or even my home, that it should be viewed as intent to distribute?”
No, (s)he wasn’t saying that. First, there’s that word “maybe” that should be a clue, at least for the cigarettes.
“In both your arguments you make the assumption that theft of physical goods and reproduction unlicensed intellectual property are defined under the same laws, and are both punishable under criminal law with equal weight , they are not.”
The person made no such assumptions. The argument was that they SHOULD only be considered crimes in such a way, not that they actually WERE.
Also, like the vast majority of people I’ve come across, you seem to misinterpret “only”. More to the point, you ignore its meaning entirely. To say “it should ONLY be a crime if…” does not mean the same thing as saying “it should be a crime if…”. In fact, all it means is that it SHOULDN’T be a crime under any other circumstances.
Bleh. Can you tell I’ve had entirely too much experience on either end of a lecture on if/only if statements?
Re: Re:
Additionally, the difference between selling goods and having them stolen is right up there with “She wore a short skirt and drank, so she was asking for it.”
Not to be THAT tongue in cheek, but I have a really hard time with the limitations on so-called Fair Use when I’ve already paid for the music. Grrr.
RIAA Won That One.
“However, should Plaintiffs wish to amend their Complaint to track the language of the Copyright Act that prohibits an illegal “offer to distribute,” the Court grants Plaintiffs thirty days to amend their complaint consistent with this Opinion.”
I think the judge was saying that there is no standing precedent for the phrase “make available” in copyright law, but that the plaintiffs could go forward and attempt to make a case for the phrase and set a new standard for its use – or – they could just simply take the time he graciously granted them to change their terminology over to something very akin and already legally described. Which they’ll obviously do and it’ll be the new standard RIAA complaint.
Isn’t the purpose of putting a file in a file sharing folder intent to have it available (or share) to others? Isn’t that kind of the purpose of the file sharing program?
Re: Re:
Right, but what you fail to understand is that a lot of users do not understand that the My Pictures and My Music folders are automatically shared by windows without the user having taken any steps to activate it. That does not require a file sharing application to enable. It is enabled when you install the OS. Microsoft has this thing in their head where they think you want to share everything on your PC with the world, when it should be the other way around. I want to keep everything private until I open a folder up for sharing.
Re: Re: Re:
Thats actually completely inaccurate.
The “My Pictures” and “My Documents” folders are personal to each account made on the computer, this is true for each variant of XP and Vista. Only an administrative account can access another users folders and then must go out of his/her’s way to do so.
However, what KaZaa does is create a folder, “My Downloads” in the user’s “My Documents” folder and then share the contents of that folder over the KaZaa network when the application is running. An install program for the application as well as anything the user downloads is by default put into that folder.
Most users however tend not to realize that anything in that folder and thus anything they download is, by default, shared. The application doesn’t make any particularly strong effort to make this obvious.
Re: Re: Re: Re:
“My Pictures”, “My Documents” and “My Music” all fall under what I described in the first paragraph.
Re: Re: Re: Re:
I don’t know about completely inaccurate but yeah, the AC definitely simplified it a bit too much.
I think they meant to say that many file sharing programs will automatically share those folders; some will ask if you want to do this, others will just add them to a list and expect you to opt-out if you don’t want them shared.
Re: Re: Re: Re:
The “My Pictures” and “My Documents” folders are personal to each account made on the computer, this is true for each variant of XP and Vista. Only an administrative account can access another users folders and then must go out of his/her’s way to do so.
Yeah, and on many Windows systems all of the users are in the “administrators” group too (because many Windows programs won’t work right otherwise). That’s still sharing. And no, they don’t have to “go out of his/her’s way” to do it.
Subtle difference that most people probably don't
Friends of mine (and their kids) stash everything in the shared music directories on their computers, even the music they’ve bought and paid for. I don’t think most people know the difference or realize that this music can be accessed by anyone. I understand the difference (and I’m the one they call to fix the problem when the crap their kids has downloaded mucks something up on their PC).
A basic tenet of American law is that ignorance is no excuse, and on paper, these people are committing a crime, under the wording now approved by the judicial whores, who are the overpaid lap dancers of the RIAA goons.
what I got from it..
What I understood the ruling to mean was that they were defining the difference between “making available” where the software may have automatically shared the files versus distribution where the user played an active role in advertising that they had it available, whether by posting it on a torrent site, sending an email/IM to friends or what-have-you.
Re: what I got from it..
I better add that “making available” was considered to not be valid since there was precedent that merely offering to sell a copyright work was NOT considered distribution/publication and that there had to be actual distribution for there to be infringement. The court didn’t dismiss on these grounds in this case because there was possibly proof of distribution but they seemed of the opinion that if the evidence didn’t support the claim, then it could be dismissed on those grounds at a later date.
IANAL but that seems less of a win for the RIAA.
Copy-Right
Copyright. Copyright controls the right to copy. No copy made, no copyright infringement. How much clearer can it be?
Re: Copy-Right
Precisely, plus how can they know exactly what files are copied from your PC without committing a crime? I got picked up by the FBI for sniffing traffic and regenerating the content. How do they get away with it?
Re: Re: Copy-Right
Precisely, plus how can they know exactly what files are copied from your PC without committing a crime?
Simple, they get permission from the copyright holder first.
Re: Re: Re: Copy-Right
Unless I’m the copyright holder, and I have given them permission (which I will never do), they have absolutely no permission to scan my HDD or access my ISP without a warrant. And since they are not a law enforcement agency, they will never get it.
So I ask again… how are they, in any way, legal here.
Re: Re: Re:2 Copy-Right
Unless I’m the copyright holder, and I have given them permission (which I will never do), they have absolutely no permission to scan my HDD or access my ISP without a warrant. And since they are not a law enforcement agency, they will never get it.
The discussion is about “making available” files to the public. When you offer to share files with the public you are giving permission for them, as a member of the public, to access those files. It’s the same kind of permission that you have to access the files on Techdirt’s server that you’re reading right now. We’re not exactly talking about black bag jobs here where they break into your home or computer.
So I ask again… how are they, in any way, legal here.
Read what I just wrote. If you can’t understand that then you’re beyond my ability to help.
so if i put my music/videos in a shared folder on my network so that I or my roommate/guests can play them through my xbox does that mean i’m infringing copyright through distribution?
Re: Re:
Technically, yes. Your making them available for public display. Legally, when you buy music, you should be the only that ever hears it.
This does of course make loud music in cars and sharing a movie with your family all in violation of copyright law, but obviously this doesn’t get enforced.
But for how long?
Re: Re: Re:
You’re mostly right but it was clearly stated(either in the ruling or the Copyright Act) that “public display” was NOT distribution.
Re: Re: Re: Re:
No, its not. Its a different charge under copyright law.
Re: Re: Re:
so what you’re saying is playing a dvd on any type of televison or screen can be considered making available for public display hence making it available to copy, hello camcorder.
my question is how can they “legally” sell a product that can only be used in an “illegal” copyright infringing way.
Re: Re: Re: Re:
nevermind the above, ehrich got a comment in before me.
No, I have to disagree. We're dealing in exclusive
I think concluding that there is no violation of copyright if available files were not downloaded is wrong in at least two ways:
1) “Making Available” is analogous to distribution, whether or not someone takes the offer. In front of my Metro each morning are two newsies hawking two competing free tabloids to the commuters. Invariably the tabloid backed by the city’s newspaper is taken while the tabloid backed by a church group is ignored. I would find it hard to accept an argument that the ignored newsie is neither “distributing” or “making available” her product simply based on the commuters’ rejection of her offer. The same applies to the shared folder: for the purposes of the network and the software operating on the network, the content of that folder is “made available” by its being located in the folder. Similarly, one can reason that a user who opted to save the file in that directory, rather than a non-shared folder, has chosen to distribute that file. (Ignorance of the law, or the technology itself being unimportant to the implications of placing a file in that particular directory.) Whether another network user chooses to download that file is a separate decision and separate action from the choice made to place the file in that directory – just as the commuters’ decision to either ignore or take the tabloid is separate from the newsie’s choice to stand there and make the product available.
2) The second aspect that is important here is the concept of exclusive rights. Copyright is all about the exclusive rights of the copyright holder. Distribution, publication, performance, etc. are rights held exclusively by a copyright owner. For anyone else to perform, publish, distribute, create a derivative work, etc. is an invasion on the owner’s exclusively held right. The owner can of course license those rights away, but such is not the case in this, ahem, case. To make available for distribution too closely impedes upon what is a clearly delineated right of a copyright owner.
I just wanted to make those points because copyright is an interesting beast with its own rules. First, as Mike often writes here, “stealing” may be the least useful analogy when reasoning about copyright. And I think the open window, distribution model above fails because of its reliance on theft of physical goods.
-Saygin
Re: No, I have to disagree. We're dealing in exclu
Except they state clearly in the Copyright Act that merely offering to sell a copyright work is not defined as distribution; someone has to take you up on the offer for that to apply.
Re: No, I have to disagree. We're dealing in exclu
The open window analogy might be made more correct by saying that the CDs were copies of the original, purchased CDs, or by saying that the “thief” makes a copy and returns the copied CD.
Re: No, I have to disagree. We're dealing in exclu
Its the “offer to distribute” phrasing that changes everything.
And thus makes it so that the open car window analogy doesn’t apply unless you would have made it obvious you wanted people to feel welcome to reach into your car (generally, its assumed thats not the case).
Re: No, I have to disagree. We're dealing in exclu
It seems to me that “distribution” and “making available” are not the same thing. To continue your analogy, if the church only made their tabloid available on their own premises, that would be only “making available”. Not until until copies are transported off their own premises, such as to the Metro, has “distribution” occurred and those doing the transportation are doing the “distribution”, whether it is the church itself or a separate “distributor”.
Similarly, not until a copy is transported off someone’s computing premises can it be considered “distributed”. Until then it can only be considered to be “made available”. This requires that either someone else comes and actually gets the copy from the premises or that the sharer upload the copy off his premises. That’s the difference between “making available” and “distributing”.
Re: No, I have to disagree. We're dealing in exclusive
I believe you are ignoring intent. If someone places music files in a directory with the intent to distribute those files, then there is no valid distinction between “make available” and “distribute.” Proving intent is the problem that the music industry will need to resolve.
Sorry about the lack of paragraph breaks...
… it looked correct before I hit the submit button.
Re: Sorry about the lack of paragraph breaks...
If you use the “HTML” function, you have to add in your own paragraph breaks.
In a shared folder
No one sat back to ask what reasons someone might use a share folder for. Now, I support multiple device in my home that play music/video. I put the music/video files I have into appropriately labeled folder, then share the entire directory on my network, with the intent to view/listen to “my” media on another one of “my” computer devices (ie PS3, 360, you get the gist). I was always given to understand you’re innocent until proven guilty. With that in mind, it seems the only way to prove that someone was putting media into a shared folder with intent to distribute illegally would be to actually attain the shared settings of the folder and prove they were set with a malicious intent. Now I don’t know much in the ways of law, but wouldn’t getting a warrant for that sort of search be extremely difficult to justify?
Re: In a shared folder
Its actually a lot easier in this case.
KaZaa allows you to view the files another user is sharing in their entirety.
The plaintiffs viewed them remotely through the KaZaa network and took screen shots, with which they were able to prove enough that the defendant may be acting illegally and were able to thus go forward through further legal options.
Inside your LAN on your network, they have no idea what your doing – until you start to share it with the internet.
Re: In a shared folder
I share your sentiment. I think the judge’s wording can be interpreted as “putting music in the shared folder with the intent for others to download it is quite plainly an attempt to infringe copyright.” However, it must be shown that the person placed music their with intent to share. If all you have in the “shared” folder is what was downloaded, it is easy to argue that the person was not aware of the bidirectional nature of their download. My guess is look for “negligent copyright infringement” or “attempted copyright infringement” to be coming down the legal-ese pipeline.
Technically, yes. Your making them available for public display. Legally, when you buy music, you should be the only that ever hears it.
This does of course make loud music in cars and sharing a movie with your family all in violation of copyright law, but obviously this doesn’t get enforced.
Interesting… So you are saying – basically if an ‘entity’ buys it, then they can use it.
What if… let’s say – the consumers banded together and formed a ‘music listeners rights association’ – and the association purchased the CD’s/Music – would it be acceptable for anyone in the corporation or association to listen then?
I thought of that when I was thinking – well, wouldn’t the ‘family’ be considered an ‘end user’ – after all, I don’t buy a movie SPECIFICALLY for me, I usually buy it with the intent I will watch it with my family.
Re: Re:
No, it wouldn’t be acceptable.
The end-user is the individual that physically went and purchased the piece of debated entertainment.
Thats the letter of the law at least. In practice, no ones doing family movie night home raids.
Unless the movie came from KaZaa.
Re: Re:
And in fact, if that “music listener’s association” got large enough (some few hundreds members probably before they cared) it would attract the ire of the RIAA – unless they purchased the proper licenses from the record labels.
how about...
You change the folder name from shared folder to “This folder is not a shared folder go fuck urselves RIAA”
Could you then say the music was being stolen from you since you made it clear it wasn’t a shared folder.
Re: how about...
My own wi-fi network is encrypted with WPA-TKIP, but I also named the network a variant of this_network_not_public. If someone with a little bit too much time on their hands decides to hack into my wi-fi network, at least I’ve put them on public notice.
The only reason I did this is because of reading Slashdot and TechDirt blogs and understanding that having an unsecured wi-fi network is just begging for the Feds to nail me for something my neighbors did. In theory I have no problem sharing my wi-fi network with the world, but I realized one day fuck, what am I doing here, I could end up with the FBI or the RIAA breathing down my necks, and then it’s up to me to prove that it wasn’t me who was using the network to download kiddie porn or pirated music.
Re: Re: how about...
The only reason I did this is because of reading Slashdot and TechDirt blogs and understanding that having an unsecured wi-fi network is just begging for the Feds to nail me for something my neighbors did.
Just voicing the wrong opinions in the US is enough to get you nailed, never mind your neighbors.
How many judges have to rule a certain way, before it becomes law?
I mean a couple of judges have already ruled that “making available” doesn’t equal distribution and that the RIAA will have to show evidence of actual distribution to win. Then this judge comes along and says that while technically “making available” isn’t distribution, it’s close enough that the RIAA can still sue people for having music in a publically shared folder. Will the judge in the next trial rule the opposite way again?
How many judges do you have to get to decide in your favor before the question itself stops becoming an issue that the judge has to rule on?
Translation
It seems that what the judge said boils down to “OK, I’ll be fine with your claim that “making available” is infringement if you’ll just substitute the word ‘distribution’ for it.” In other words, the judge only cared about the semantics and not the basic difference in meaning.
The saddest part of the whole RIAA/”piracy” thing is nicely highlighted by this comment:
… then it’s up to me to prove that it wasn’t me who was using the network to download kiddie porn or pirated music.
Sad that music, once viewed as an inspiring, spirit-lifting art form, is now viewed on equal footing with child porn in the USA, due to the actions of the RIAA. Sad.
When did I
These are the reports I wrote:
here and here
Where in those reports did I “claim victory” or say that this decision “handed the RIAA a setback”?
Please get your facts straight.
If I thought it was such a wonderful victory why did I write to the Judge in the Warner v. Cassin case telling him that the Barker decision was wrongly decided?
The Barker decision rejected a dumb argument the RIAA had been making, and rejected all of its dumb reasoning in support of that argument. However, it sustained the complaint, and it suggested a theory the RIAA hadn’t thought of to replace the rejected one. So while the decision was obviously a partial embarrassment to the RIAA lawyers, it was basically a huge victory for the RIAA.
Re: When did I
Exactly.
Intent
If you have copyrighted material in a shared folder, and are running a file sharing program, the intent to distribute is obvious. Who are you trying to fool?
Re: Intent
If you have copyrighted material in a shared folder, and are running a file sharing program, the intent to distribute is obvious. Who are you trying to fool?
“It is the fool who speaks knowingly of things which he does not know.”
First, the contents of a file cannot be determined from a file name. The contents themselves must be examined and that requires actually accessing the file.
Second, the mere appearance of a file in a listing does not prove that it is actually available. Some people run customized file sharing programs that advertise files as available that really aren’t. This is sometimes done to circumvent sharing “rules” on some networks. The only way to determine if the file is actually available is to actually download it.
Third, even if a file is in a shared folder, who’s that say that the placement and sharing was intentional? Only a court is competent to make that determination and then only after examining all the evidence in a particular case.
So, there can be questions of content, availability and intention which can not be accurately answered from a quick glance. If someone told you otherwise then they were the ones fooling you.
…and what of the libraries, the stockpiles of real intellectual property and copyrighted materials. They even have copy machines there. You don’t see authors throwing a fit about such an arrangement. This is because most authors actually want to promote the free exchange of ideas, knowledge and the like. The only thing they worry about is someone falsely claiming their work, e.g., plagiarism.
The reality of the matter is that the music industry is an artist’s industry. Commercialized Monet. Capitalized Van Gogh. Most artists’ works aren’t even worth anything until after they’re dead. The world is packed with starving artists, and yet these (musical) artists think they can produce a body of work, tour a bit, and never have to work again, living off royalties. Many of them don’t even bother to invest. Many just go on spending sprees or decades long benders.
This doesn’t mean artists don’t have their place in society or shouldn’t be generously compensated. i for one believe it is the music industry that is robbing the artists, not the consumers. i’d be on a bender too if i felt so used. Does anyone really believe any of the money the industry wins in these lawsuits goes to compensating the artists? They get whatever it is they sign to under contract. The music actually belongs to the industry, the record labels themselves. Royalties are only a fraction of what the industry actually makes, which is why the industry is at all concerned.
Furthermore, there is a saturation level to the market.
That is, there is only a certain amount that anyone is ever “really” going to make from any particular album. If everyone on earth bought a copy, that’d be the limit, neglecting future unborn purchasers. What then? Tax existing sold copies to keep the money flowing? Most of us working folk still have to keep working jobs we hate. I’d love to go to the boss’ office and say: “Yeah, remember the millions I saved the company by improving such and such a process, I’d like to have a piece of that savings from now until eternity.” I’d probably get fired or laughed out of the office. Or how about going to past employers and asking for a handout for my aiding the company reach it’s present market value. I’m sure the checks would be coming left and right. Should I get a lawyer to belabor the point? No, the answer is simple. The world just doesn’t work that way.
It’s probably been said a thousand times, but what they need to do is alter their business strategy so they can invest in the future. All they’re doing right now is investing in the past. As far as I can tell, it’s not working very well. I imagine they’re spending more on the lawyers than is actually cost effective.
I'm too tired to read everyone else's posts ...
… so I’ll just say my piece and take a nap.
I hate the RIAA as much as the next guy (look at next guy to see if I’m right), but the word “publish” means “to make public.”
Putting copyrighted material into a shared folder for all the world to see is making it public — you are “publishing” that material. Publishing another person’s work without permission is illegal. Whether someone copies it from you is moot.
The RIAA wins this round. But only THIS round.
If shared folders are publishing...
then there are a lot of infringers out there. Almost every Windows machine I have seen on a network has had the whole system drive shared ($C). So, this judge’s ruling would mean that all those people were illegally publishing Windows. Probably even this very same judge. Everyone’s a criminal. Watch what you say, don’t step out of line and maybe they won’t come for you.
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I think the judge was saying
I think the judge was saying that there is no standing precedent for the phrase “make available” in copyright law, but that the plaintiffs could go forward and attempt to make a case for the phrase and set a new standard for its use – or – they could Sexy Lingerie Wholesale just simply take the time he graciously granted them to change their terminology over to something very akin and already legally described
make available
If someone places music files in a directory with the intent to distribute those files, then there is no valid distinction between “make available” and “distribute
Great article and alot of great opinions, i enjoyed reading. thanks again