In opposition papers served yesterday in Elektra v. Barker in Manhattan federal court, the RIAA has argued that merely making files "available for distribution" is in and of itself a copyright violation.
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3 comments:
Perhaps I am making a very tenous argument here howoever I will make it anyway.
Merely making available files which the plaintiff held exclusive copyright on....This is Warner/Electra US, which is not the same as Warner/Etektra Canada or any other corporation related to the US corporation. What about music importers who buy music in one country and export it to another intending to distribute it. Wouldn't this be "making available" as well?
The statement "having right to control the distribution of his work" ... this very plainly does not apply to a person who exports a copy for re-distribution in another country. The Music Industry has long been longing to prevent importation of product it distributes from on jurisdiction to another, yet under any laws of commerce generally accepted in the world, this is perfectly acceptable behaviour. That's why import music stores exist. Customers believe that a copy manufactured in another country (for instance Japans) is of higher quality than one made in Canada and the US.
The music industry has tried on numerous occasions to stop cross-border importation of product it claims "the exclusive rights to distribute" -- except that no one but the music industry recognizes that exclusivity. In some countries they have resorted to intimidation of retailers who carried such product. Most of the time this fails because competition laws step in. Recently the Australian government took action against members of the recording association there for intimidation of retailers who imported product from overseas. As you can see, the music industry has an over-exaggerated idea of its "rights" to prevent people from doing what they want with items they have legally purchased. If they could, they'd go after second hand CD stores, but no court in its right mind would stop such a legal trade.
Having worked in the retail music trade before I have seen how strenuously they object when they see this happening. In some cases product could be imported, brokered through boarders and re-distributed at a lower cost than the same product was being sold for in the domestic market.
I'm not sure what American law is on this, I do, however know that Canadian law strictly sides with the importer and takes a dim view of any intimidation on the part of the "official distributor". Isn't the Internet a similar kind of distribution system? The pricing is different to say the least. But what this says is that you cannot control a pice of merchandise once you have sold it.
Thanks for your input, folks.
Our reply briefs in Elektra v. Barker and in Atlantic v. Does 1-25, in both of which we debunk the RIAA's new argument, are due to be filed February 7th.
Stay tuned.
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