Thursday, October 04, 2007

RIAA Convinces Trial Judge to Accept RIAA's "Making Available" Theory

Ars Technica reports that the RIAA succeeded in convincing the trial judge in Virgin v. Thomas to change his jury instruction to accept the RIAA's "making available" theory.

According to Ars, the judge's instruction, which was handed out to counsel last night, initially said

"The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners' exclusive right to distribution. An actual transfer must take place."
But the Judge this morning, accepting Richard Gabriel's argument, changed it:
Gabriel cited Perfect 10 v. and the original Napster case to support the RIAA's view that making a file available for distribution over a peer-to-peer network was a violation of the Copyright Act. "If there's an index and something behind it, that's distribution," argued Gabriel.

The judge seemed particularly interested in UMG v. Lindor, and while that particular case was being discussed, Matt Oppenheim of the RIAA was consulting the "anti-RIAA blog" The Recording Industry vs The People. Gabriel noted that he was lead counsel in that case as well and that the decision cited in the case wasn't applicable to the matter at hand.

Toder disagreed, but at the end, Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." That decision should make it easier for the jury to find Thomas liable.
Complete article

[Editor's Note: We received an unconfirmed phone message from someone identifying himself as Matt Oppenheim, who indicated that the above report was incorrect as he is not "of the RIAA". The caller did not give a phone number or indicate who Matt Oppenheim is affiliated with. We do note that we have seen reports in other media that Matt Oppenheim is affiliated with the "Oppenheim Group". However, we looked at a website of the "Oppenheim Group" and were not able to confirm that. Matthew Oppenheim has been, on several occasions, in court appearances, introduced to the Court as being "the client" or as being a representative of "the industry", and Mr. Gabriel has refused to confirm to me who Matt Oppenheim is in fact affiliated with. So we do not credit the phone call. If Mr. Oppenheim calls me again, can verify he is who he says he is, gives me contact information, and gives me details of who he is affiliated with and what his role is in these litigations, I will be pleased to report same on my blog. All we know and can corroborate at this time about Matthew Oppenheim is that he was a lawyer at Jenner & Block until December 31, 2006, and that prior to that he was in house counsel at the RIAA. Mr. Oppenheim did not suggest that we had misquoted Ars Technica in any way.]

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


Unknown said...


I'm waiting for someone to get sued for leaving a CD on the ground while tying their shoe. An RIAA lawyer will be walking by, they'll reach down next to said person tying their shoe, pick up the CD, and then berate them for making RIAA copyrighted material freely avaliable to anyone who decided to walk by and pick it up.

Unknown said...

IANAL, but wouldn't "making available" require intent? I sincerely hope that Mr. Toder gets the opportunity to instruct the jury that "being available" isn't the same as "making available."

If there's any way you wouldn't mind adding my insights while screening my e-mail address, that would be great... I'm a bit afraid of spam.


Steve Robertson said...

There is issue #1 for appeal.

Timothy Durnan said...

Let me precede my comment with the boilerplate statement: I am not a lawyer. (But I do consider myself a decently smart individual, and I have kept tabs on the various RIAA cases.)

It is my belief, though, that with regards to this particular point ("making available"), isn't the onus of copyright law on the person(s) doing the actual copying?

For instance, suppose I have a secure computer, fashioned in such a way that it can't be tampered with, sitting on my lawn. People can walk up to it and use the (limited) mouse movements to scroll through available songs, selecting the ones they desire. They insert their own blank CD, click "copy" and receive a copy of the songs burned to CD. In such a scenario, would I be liable for copyright infringement, even if I was not the one that did the actual copying?

I'm just trying to understand where the line can be drawn.


Unknown said...

It was then that Toder raised the issue. Richard Gabriel quickly objected to Toder's mentioning the topic; the judge sustained the objection and the issue was dropped. Throughout the rest of the trial, the RIAA's assertions that Thomas engaged in distribution over KaZaA went unchallenged.

With the above issue, where the defense wasn't able to bring up the topic, which the judge has now allowed the jury to consider, wouldn't that leave this trial open to an appeal if it goes against the defendant?

raybeckerman said...

Yes this was a major appealable error if Ms. Thomas loses.