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Making available=infringing, yes or no?

Chasing_pirates 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 According to Sydnor, that decision is superceded by the Supreme Court's ruling in the Tasini case, which Sydnor argues established the precedent that "making available" was infringement.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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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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