Tuesday, August 28, 2007

Recent US Court of Appeals Decision Reiterates "Authorization" Is Not "Infringement"; Contrary to Argument RIAA Made in Barker, Cassin

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

Commentary & discussion:

Motel de Moka

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


jbrooks said...

Here is a link to that decisipon:


AMD FanBoi said...

First we teeter, then we totter, in this argument over the seemingly clear language of what actually constitutes infringement according to the Copyright Act.

Pat said...

Wow, talk about the right thing at the right time. To have the Court of Appeals say "Infringement depends upon whether an infringing act, such as copying or performing, has occurred." and "to prove infringement, a claimant must show 'an infringing act after the authorization.'" just about shoots the whole making available argument in the foot.

I can't wait to the RIAA try to wiggle past this.

raybeckerman said...

Thanks for the link, j., I put it in the story.

Yes, patrick, it does, doesn't it?

raybeckerman said...

But I will say there is nothing new in the Latin Music case either. If you recall, Judge Karas was pointing out to Richard Gabriel at the Elektra v. Barker oral argument that there was no authority for Gabriel's position.

raybeckerman said...

By the way, amd.... this was an appellate case, and in this case the parties were represented by counsel.

Pat said...

Yes, thanks for the link, I was just looking through the opinion and this looks like a monster of a case.

Filed in 1996 with 51 songs, then sidetrack the argument with a dispute between LAMCO/ACEMLA and ASCAP over 5 songs. Then throw in a bunch of music publishers challenging ownership of 468 of LAMCO/ACEMLA's songs and LAMCO/ACEMLA challenged ownership of 174 of them. Then some legal jockeying and LAMCO/ACEMLA pulling an RIAA and trying to stonewall and finally finish this little sidetrack with LAMCO/ACEMLA (the people who started this whole mess) being ordered to pay almost $350,000 plus legal fees (the appeals court sent all but $37,500 of it back down to district). I wonder what their legal fees look like?

But now that I have actually read the ruling, I am less sure that the court of appeals directly addressed the issue. They did quote the opinions that you quoted in your letter but as to if the catalog was actually infringing, they simply said:
"The Publishers have not cited authority to show that including songs in a catalog, issuing licenses, and threatening litigation are infringing actions under § 106."
It goes on:
"In addition, the district court did not decide whether LAMCO/ACEMLA had committed infringing acts in addition to authorization, leaving a factual issue as to whether LAMCO/ACEMLA's actions were infringing acts. In the absence of guidance from the district court and little assistance from the parties, we cannot decide whether the record contains sufficient undisputed evidence of infringing acts to warrant summary judgment on infringement."

So it looks like they just said that the publishers didn't provide any evidence (ie. they didn't have the big long argument you and our good friend Mr. Gabriel had) and didn't actually issue an opinion on the whole authorizing mess.

Or at least that is what the RIAA is going to argue. (sorry about the backwardness of the post, this is what I get for writing the post while thinking)

But I think that the line "the district court did not decide whether LAMCO/ACEMLA had committed infringing acts in addition to authorization" is important because it shoots down the whole argument authorization + them downloading (agreed on by both sides that this is not infringement) = illegal publishing/distribution.

Even if both Baker and Cassin find that making available is distribution, if the district court finds that putting songs in the catalog is not infringement, you have grounds for appeal, a good backup case if hell freezes over.

But I think the most important thing is that it is just a little more case law to push the judges against the making available case. The fact that the district court implies that there is no case law to back up the same argument that the RIAA is making means that the judge will just have to be that much more certain that making available is infringement.

(god, I just came to the realization that I have spent so many hours over the last 2 days reading the in court arguments and a relevent appeals court ruling about such a trivial, easy to answer question. I definitely don't envy you Ray, I surely don't have the patience to put up with this on a daily basis. You should get a medal.)

raybeckerman said...


1. The RIAA, faced with the fact that the Copyright Act contains no support for their fantastical new theory that "making available", argued in Barker and Cassin that the phrase which precedes the enumerated rights included in a copyright, that the author has the right to do these things and "to authorize" someone to do them, created the argument that the phrase "to authorize" meant that you could sue someone just for the authorizing.

2. Any real copyright lawyer knows this is a nonsensical interpretation of the phrase.

3. The Latin American Music case reminds us of that. Which is important because the RIAA made this ludicrous argument in their opposition brief in the Cassin case, even though Judge Karas had basically torn it to shreds in the oral argument in Barker.

As to your final comment, I'm not looking for any medals, but I will tell you that while litigating against top flight lawyers is a very pleasurable activity for me, litigating against the RIAA's attorneys is no fun at all.

Pat said...

Augh, I hate this case, but:
"2. Any real copyright lawyer knows this is a nonsensical interpretation of the phrase."

really helps. I can't stop thinking of a way that what the RIAA is claiming makes any sense at all. If it turns out to just be riaa waffling, it makes a lot more sense.

I keep coming to the argument which says even if the defendant authorized infringement, it is clear that is not sufficient and they must do something else. It seems as though they are trying to argue that them downloading the song (not infringement) all the sudden makes their 'making available' an act beyond authorization. But by that claim, the defendant eating a ham sandwich (again not infringement) after authorization makes 'making available' infringement. After all, eating a sandwich is an action and it did take place after alleged authorization.

Of course, this argument is ridiculous because both eating a sandwich and distributing a song to the copyright holder are both non-infringing. Am I missing something? If not what is taking the judge so long to rule? If the problem is simple enough for me to shoot down after a couple hours of thinking, a judge should have no problem shooting that down. Are the judges just doing due diligence or am I missing something (the whole publishing thing in the oral arguments lost me, but it looked really contrived to me).