Making available=infringing, yes or no?
I was reminded today of why I couldn't be a lawyer. My brain's still hurting from the series of briefs I read in Capitol v. Thomas case. Nevertheless, I commend them to you (check out Ray Beckerman's website for a list) for two reasons. First, the issue in question -- whether the mere act of putting a song file into a folder that others can download from constitutes infringement -- is hugely important. Under the interpretation advanced by the RIAA and the MPAA, making a file available for copying online network is enough to violate its copyright, even if there's no evidence that anyone actually copied it. Although the Jammie Thomas case involved a file-sharing network, the argument could just as easily apply to any folder made accessible to the public via the Web -- for example, the one associated with a certain 9th Circuit Court of Appeals judge.
Second, there's a fascinating line of reasoning in the MPAA's brief about the need to interpret U.S. statutes in a way that's consistent with international treaty obligations. That sort of argument is unsettling, given how aggressively U.S. negotiators have been pushing intellectual property protections on our trading partners. It raises the possibility that copyright owners could win protections through treaties and the courts that they could not get directly from Congress. But Bill Patry offers a counterpoint in this post.
UPDATE -- in a new post last night, Patry also responded to the argument, advanced by Thomas Sydnor of the Progress and Freedom Foundation, that the 8th Circuit's National Car Rental decision doesn't apply here. According to Sydnor, that decision is superceded by the Supreme Court's ruling in the Tasini case, which Sydnor argues established the precedent that "making available" was infringement.
Thomas was the first person sued by the RIAA to face a jury. She lost (to the tune of $222,000) but the judge in her case is weighing whether to grant her a new trial based on his instruction to the jury that making songs available constituted infringement in and of itself. Most of the cases filed by the RIAA include similar allegations of "making available" infringements, but that's not the only evidence the labels bring. Typically, their anti-piracy contractor, MediaSentry, also downloads copies of songs from the targeted file-sharer. Of course, if the RIAA loses the legal battle over making available, that invites a battle over whether MediaSentry's downloads can be considered infringements, given that the company works for the copyright owners.
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As always, I love your show babe. However...
Will you please, please, PLEASE beat the drum about how all the RIAA lawsuits hang on the claim of illegal distribution. The shorthand way of describing what's happening is that the recording / film industry is going after people who make copies. This is incorrect as -- suprise! -- there is a substantial body of US law (including the Audio Home Recording Act) and legal decisions (including RIAA v Diamond Multimedia) that protects the right of consumers to make a limited number of copies of protected works, provided that such copying does not damage the market for the protected work (which is why the distribution angle is key).
Put simply, if you don't allow the P2P universe to make copies of the material you have stored on your hard drive, whether that material is stolen or you've purchased it, I don't believe IP owners have any legal leg to stand on in the United States. Making a copy is, believe it or not, protected behavior.
That's why this whole "making available" argument is crucial for the RIAA / MPAA; otherwise they'd have to prove that IP on on somebody's computer came from your computer, and they couldn't go after the guy with the copy, they'd have to go after you for allowing the guy to make a copy. Ouch.
I have this theory that if US citizens never allowed anyone to make a copy of the music stored in their P2P systems, and copied all their music from people in other countries, the American recording industry couldn't pursue anyone under existing law. Of course, they'd just change the law, but still...
Posted by: Dave Wilson | July 07, 2008 at 11:48 PM
Hmmm. I believe the evidence assembled by MediaSentry is also intended to support a circumstantial case against the accused infringer for illegal downloading. IANAL, but I think both the AHRA and Diamond Multimedia support personal copying of *lawfully obtained* media. Federal copyright law pretty clearly reserves to copyright holders the right to make copies of their works, so any individual's copying would have to be evaluated under fair-use principles. That's a case-by-case examination, not a broad carve-out.
Having said that, I agree that the cases so far have hinged on alleged distributions by defendants to MediaSentry. If that whole aspect of the cases were to go away, as I discuss in this post -- http://opinion.latimes.com/bitplayer/2008/04/more-on-the-ria.html -- then the questions of illegal downloading and how to prove it would come to the fore.
Posted by: Jon Healey | July 08, 2008 at 12:16 AM
Here's an excerpt from RIAA v Diamond that I've hung my argument on:
"In fact, the Rio's operation is entirely consistent with the Act's main purpose — the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at *86 (emphasis added). The Act does so through its home taping exemption, see 17 U.S.C. S 1008, which "protects all noncommercial copying by consumers of digital and analog musical recordings, " H.R. Rep. 102-873(I), at *59. The Rio merely makes copies in order to render portable, or "space-shift", those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic non-commercial personal use entirely consistent with the purposes of the Act."
One could make the argument that the Act doesn't cover making a copy of material to which the consumer has no right to possess in the first place (that is, one can make a copy of an over -the-air broadcast because, hey, they're letting you listen to it through an "authorized" broadcast) but that implied consent wouldn't apply to simply grabbing a copy of something that somebody posted via P2P. But that clearly ain't what the court is saying here. I'd be curious to see what somebody like Lessig thinks...
You remain a god to me.
Posted by: Dave Wilson | July 08, 2008 at 04:26 AM