Wednesday, January 25, 2006

RIAA Argues: Merely "Making Available for Distribution" is a Copyright Violation!

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.

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


David Fedoruk said...

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.

jaded said...

According to the cited 17 USC § 101, it would appear that, if one does not 'distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, then one has not published (i.e., distributed) the work.

Quite obviously, the last two conditions do not apply. A question could be raised, however, as to whether a file sharer is distributing 'for purposes of further distribution'. I would submit that any 'sharer', assuming the file is actually shared (i.e., transferred), is making the file available for the use of the uploader with no expectation on the part of the original sharer, or requirement on the part of the uploader, that that file be further distributed. The fact that the uploader might choose to further 'share' the file is not something under the control or direction of the original sharer.
This would arguably invalidate the 'for purposes of further distribution' aspect of the act.

As such, with all three components of the definition of publication having been shown to not apply, there can be no publication (or distribution).

Therefore, if there is no publication (or distribution) involved in the actual act of 'sharing', then the offering of a file for uploading can not be construed as abetting the proscribed act of publication (or distribution).

Marsvenge said...

to Jaded - I thought the exact same thing when I first read the opposition papers. How considerate of the RIAA to cite the relevant section of the law to further the defendant's case. Does the phrase "....for purposes of etc....." bring intent into play? Will the RIAA now have to fabricate evidence to support the position that defendants are "making available" for purposes of further distribution, public performance, or public display...... I remember reading that copyright infringement was a strict liability act, so intent is not a factor.

Regarding the rest of the opposition paper, it seems that they read the EFF's deeplinks as well since they cited the case about a copyrighted work being available in a public library and they are quite derogatory towards Mr. Beckerman's motion to dismiss. They are quick to say that the cases Mr. Beckerman cites are irrelevant (because they refer to photos, etc.) yet the cases that they refer to seem to be in the same category. I thought that the Napster decision which Mr. Beckerman cited specifically stated that merely making available for distribution was not an infringing act in the context of internet file-sharing. How their case citation of a library book is more relevant than a case that dealt specifically with internet file-sharing is beyond me.

Also they deliberately misinterpreted the Supreme Court decision, it did not say that p2p software and services are liable for the infringing activities of their users but merely that they can be held liable dependent upon their actions (marketing and otherwise, if they encouraged infringement, etc...).

Hopefully Zi's affidavit will show the courts that IP addresses and the logs kept by the ISP show absolutely nothing about the user of whatever equipment behind the IP and that filenames are not absolute proof as to the contents of that file. (The MPAA cried infringement over a little girl's book report on Harry Potter and the RIAA cried infringement over an astronomy group's a capella rendition of a song on the subject of astronomy because one of the professors was named Usher......)

Ray Beckerman said...
This comment has been removed by a blog administrator.
Ray Beckerman said...

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.

Chevy said...

I have AOL which has XM Radio whose quality is that of a CD. Using my software I record hours of this music (CD quality) and place it in my shared folder after using an MP3 splitter to edit and tag each song with the appropriate artist. The shared folder allows my wife or daughter when they're using their PC's to play any song they desire on my local area network. Attorney's with the right knowledge should be able to blow the RIAA away with that and force the RIAA to show evidence music was DL illegally. Sirus radio works the same way, just plug the output into your soundcard and record CD quality music uintil your heart's content.