In its attempt to create a right to sue for "making available", the RIAA has argued, at the oral argument in Elektra v. Barker, and more recently in its opposition brief in Warner v. Cassin, that the term "to authorize" in the preamble language of 17 USC 106 means that merely "authorizing" something is tantamount to "infringement". This argument was recently repudiated by the United States Court of Appeals for the First Circuit, in Latin American Music Co. v. Archdiocese of San Juan.
Defendants' lawyers brought this recent holding to the respective Judges' attention in both the Barker and Cassin cases.
August 28, 2007, Letter of Ray Beckerman to Judge Robinson in Warner v. Cassin (Latin American Music decision)*
August 28, 2007, Letter of Ray Beckerman to Judge Karas in Elektra v. Barker (Latin American Music decision)*
* Document published online at Internet Law & Regulation
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