Saturday, January 12, 2008

Jeffrey Howell is not alone; Electronic Frontier Foundation files amicus curiae brief refuting RIAA arguments in Atlantic v. Howell

Yet another intriguing event has unfolded in the extraordinary drama playing out in Phoenix, Arizona, Atlantic v. Howell, a pro se case (Mr. Howell is representing himself, and has no attorney).

At first the Court issued an order, at the RIAA's request, saying that merely "making available" is a copyright infringement, and granting the RIAA's summary judgment motion.

Mr. Howell thereafter moved for reconsideration, and upon reconsideration the Court granted Mr. Howell's reconsideration motion and vacated its previous order.

The Court allowed further briefing, and specifically asked the parties to submit supplemental briefs on certain issues. (It was in response to that request that the RIAA submitted papers saying that copying one's cd's onto one's hard drive is unlawful.)

And now -- on Friday January 11th -- in an extraordinary development, the Electronic Frontier Foundation has filed an amicus curiae brief, refuting the RIAA's arguments as to the merits of its case.

Among other things, the brief makes the following point:

Plaintiffs’ summary judgment motion is premised solely on the distribution claims and is built around the erroneous contention that “[infringement of] the distribution right does not require a consummated transfer of the copyrighted work at issue.” Plaintiffs’ Supplemental Brief in Support of Their Motion for Summary Judgment, Doc. # 63, at 5 (hereinafter “Plfs. Supp. Br.”).

This proposition, if accepted, would contravene both the plain language of the Copyright Act and applicable precedents, threatening to disrupt copyright law in a variety of contexts beyond this case. As will be discussed further below, several Plaintiffs have already sued a national radio broadcaster, XM Radio, based on a variant of the same “making available” theory that they advance here. See Atlantic Recording Corp. v. XM Satellite Radio, No. 1:06-cv-03733-DAB (S.D.N.Y. filed May 16, 2006). Similarly, copyright owners have also pressed this theory against Google, contending that the Internet search engine runs afoul of an expansive “making available” conception of the distribution right. See Perfect 10, Inc. v., Inc., __ F.3d ___, 2007 WL 4225819, slip op. at 15463 (9th Cir. amended opinion filed Dec. 3, 2007). This Court should reject Plaintiffs’ effort to further distort copyright jurisprudence on the backs of the pro se Defendants here.

Contrary to Plaintiffs’ arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work. Because the only evidence here consists of downloads by Plaintiffs’ own, authorized nvestigators, Plaintiffs have failed to shoulder their summary judgment burden, and their motion should be denied.


Section 106(3) bestows on the owner of a copyright the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). As this language makes clear, the exclusive right granted by § 106(3) encompasses only the distribution of certain things (“copies or phonorecords”6), to certain people (“the public”), in certain ways (“by sale or other transfer of ownership, or by rental, lease, or lending”). The language of § 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the “making available” of copyrighted works.

Plaintiffs’ effort to rewrite § 106(3) to reach such acts, moreover, is squarely foreclosed by Ninth Circuit authority. In Perfect 10 v., the Ninth Circuit concluded that “distribution requires an ‘actual dissemination’ of a copy.” Perfect 10 v., 2007 WL 4225819, slip op. at 15463, affirming in relevant part, Perfect 10, Inc. v. Google Inc., 416 F.Supp.2d 828, 844 (C.D. Cal. 2006). In coming to this conclusion, the Ninth Circuit joins a number of other courts that have addressed this issue in the digital context. See National Car Rental Sys., Inc. v. Computer Assoc. Int’l, 991 F.2d 426, 434 (8th Cir. 1993); In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802 (N.D. Cal. 2005) (collecting authorities); Arista Records, Inc. v., Inc., No. 00-Civ.-4660-SHS, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002). The leading copyright law commentators also unanimously agree that “an actual transfer must take place; a mere offer for sale will not infringe the right.” Paul Goldstein, 2 GOLDSTEIN ON COPYRIGHT § 7.5.1 (3d ed. 2007); accord Melville B. Nimmer & David Nimmer, 2 NIMMER ON COPYRIGHT § 8.11[A] (2007); William F. Patry, 4 PATRY ON COPYRIGHT § 13:9 (2007) (“[W]ithout actual distribution of copies…, there is no violation of the distribution right.”).

[I]t is not Defendants’ fault that Plaintiffs are unable to produce evidence of
actual distributions beyond the 11 authorized downloads performed by MediaSentry, nor is it their burden to prove Plaintiffs’ case. Plaintiffs include some of the largest companies in the recording industry, with nearly limitless resources when compared to Defendants. It is Plaintiffs who have opted to file more than 20,000 lawsuits against individuals, many whom are unprepared for the unfamiliar (to a layperson) demands of discovery. It is Plaintiffs who have chosen to target noncommercial activities that occur in the privacy of the home, thereby injecting themselves “behind closed doors” where factual investigation can be difficult. Having put themselves in this position, Plaintiffs ought not be heard to complain that proving their distribution claims poses evidentiary challenges.
[Ed. note: The Electronic Frontier Foundation's brief is a landmark document. It should be read from cover to cover by everyone who is interested in the scope of copyright law in the United States. This brief is the definitive statement on the RIAA's spurious invention of a "making available" theory of copyright infringement, and should put an end to it once and for all. -R.B.]

Amicus Curiae Brief of Electronic Frontier Foundation in Opposition to Plaintiffs' Motion for Summary Judgment*
Alternate link

* Document published online at Internet Law & Regulation

Commentary & discussion:
Punto Informatico (Italian)
Electronic Frontier Foundation


Keywords: digital copyright law online internet 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 intellectual property


Anonymous said...

Wow, what a great and fairly easy read (for a non-legally trained person)! This seems to be rock solid argument blowing the RIAA's crucial "making available" claim out of the water.

Hooray, EFF, for putting together such a well thought out and solid document.


derivative said...


For years, I have been a staunch supporter of the EFF in its fight for essential freedoms, contributing whenever I have a bit of money. As you may remember, I even sent you a check for $400.00 for the Marie Lindor defense fund.

Also, I eagerly read most of the RIAA-related legal documents that you bring to my attention through your blog.

Sadly, though, I could not even make it through the third paragraph of this particular document. You see, I find the stilted language of legal documents somewhat difficult to parse, and the only thing which makes it possible for me to read them is that, in general, they follow the rules of the English language quite well. This property helps to make many an impenetrable document at least unambiguous, so that, if I spend enough time staring at a document, the correct interpretation may eventually emerge.

I allow emails, blog comments, and other writings traditionally executed in haste a certain latitude when it comes to grammar, but I, a layman, assume that legal pleadings (especially from amicus who may be allowed but a single pleading before a particular judge) should be grammatically impeccable.

This seems a naive assumption on the face of it, but in practice the most egregious errors I notice in legal documents are usually in reasoning or in missed opportunities for enlightenment, not in basic English.

This brief, however, fails my standard miserably. I bravely pushed past the first sentence, where issues are discussed anthropomorphically, but I was forcibly ejected from the brief at the start of the third paragraph, after learning that "This proposition, ..., threatening to disrupt copyright law in a variety of contexts beyond
this case."

I hope, for the sake of all that is right and just, that the judge does not suffer my malady, that he manages to slog through the document, and that the arguments contained therein are cogent enough to sway his opinion.

But, please, please, please tell the EFF to take some of my donation and hire an English major to proofread future pleadings.


raybeckerman said...

Pat, it happens to be a great brief. It couldn't have been written better.

Legal writing just isn't the same as writing for newspapers or magazines or novels or poems; we are using phrases and words that have well defined meanings. We can't just use some other similar word that sounds better.

Law school is usually quite a slow go in the first year, because we have to acclimate to the specialized terminology of it all.

Trust me, the judge understands EVERY SINGLE WORD of it, and I have a strong hunch that he very much appreciates the contribution the EFF has made to assisting him in making the right decision.

Legal documents are written for lawyers and judges, not for lay people.

My blog is based on the idea that people benefit nevertheless from seeing the real actual legal documents.

And as you read more and more, it will flow easier and easier as it does for all of us in the law.

But as to this particular brief...... I wouldn't change a single word!!!

Jadeic said...

The best read of the decade! I especially appreciated the refutation of the oft-cited 'supporting evidence' from the US Copyright Office to Congress; dismissed with 'In fact, if anything, the Register of Copyrights, Marybeth Peters, expresses the opposite view'... breathtaking stuff.

Ray, I also endorse your comments to Pat.

Pat, if you are out there, first my sincere gratitude for your support of the EFF and Marie Lindor. Secondly, please do follow Ray's advice and persevere. I am completely untutored in the the US, let alone my native UK, legal system but after months of wading through such court documents you do develop the facility of simultaneous translation into 'standard' English.

Try comparing this brief with some of the RIAA efforts and you will soon realise that it is the epitome of concision.


Chris Bumgarner said...

I would have to agree with Pat on this one. Not to detract from the merits of the argument, but the presentation could use some improvement.

The sentence structure is overly complicated. There are too many unnecessary adjectives and too many parenthetical remarks. Not to mention those footnotes. My goodness!

It's not that the brief is impossible to read, but it makes the average reader work too hard. When you have the subject and the predicate separated by two dependent clauses, the reader struggles to remember what the sentence is about by the time he reaches the end.

I take my legal writing seriously. Many lawyers don't. Keep in mind that most judges and their staff have stacks of briefs and other things to read. Brief writers should seek to make the reader's job easier, not harder.

The brief is grammatically correct. But like any programming language, there are best practices for brief writing (I am particularly fond of Bryan Garner's writing advice). I wish more lawyers would heed these best practices, it makes their writing much more persuasive.

I am happy to see the EFF involved in this case, so I applaud them as well as Ms. Williams, who I am sure is an excellent lawyer.


Anonymous said...

Hi Pat- I'm surprised by your view. I'm not a lawyer, nor a US citizen (I'm Australian) but I found the brief surprisingly easy to read. Once you move the beyond the inevitable legalese (it is written for a Judge, after all!) of "Plaintiff", "Defendant", "burden" (of proof) and the like, the refutations put forward by the EFF are clear and unequivocal.

I wish more legal documents were this clear and to the point in their claims and refutations of the claims of others. It would make "the law" (to which we are all beholden) a little more accessible to us all! :)

Anonymous said...

All this in only 14 pages. Very nice!

And the nicest part is, given the boilerplate complaints that the lazy RIAA uses, this amicus curiae should be equally applicable to the majority of not the totality, of all the other RIAA cases.

Huge strong point where the EFF points out how you can't spoil evidence that never existed on the home computer. Spoliation charges in the past were the automatic death knell for any defendant.

Too bad the EFF didn't also address the "continuous and ongoing infringement" claims that the RIAA likes to so recklessly throw around with no supporting evidence.


And to those who have criticized this brief for being difficult to read, and not to criticize your right to your own individual opinions on it, might I suggest: If you have the time, rewrite it the way you feel presents the issues more clearly. An example for others to study of how to best communicate the information contained herein might prove a valuable education tool. Personally I had no trouble following the arguments, and IANAL, but I'd enjoy seeing these arguments presented in the clearest way possible. And this is in no way intended to diss Ray's comments about how well this particular brief is written when viewed from the legal perspective.


Anonymous said...

The mere act of making something available should not be considered a copyright violation. Libraries make books and other items available neither expecting nor encouraging patrons to copy them. If "making available" were to violate copyright law, then every library in the world would be breaking the law.

Anonymous said...

Incredible and just about one of the best reads I have had all year, striking deep into the heart of the flawed logic and arguments of the legal team of the RIAA. Thank you EFF !

This really kicks off the New Year with a positive vibe and a hope that with the EFF, there might be a chance for some clarity, reason and getting some power back into the hands of us, the great unwashed. :)

Ray, I have been reading your blog now for a while, and I just want to take this moment to express my gratitude for all your dedication and hard work 'fighting the good fight' against the 'forces of big corporate' who continue the try and change to rules of the game. Bravo !

Anonymous said...

It all seemed pretty clear to me--and quite devastating to the RIAA's case. This brie, like so many, is a refreshing change from the RIAA's obfuscating rhetoric.

Anonymous said...

I have to say that I had no real problems reading the EFF brief. Yeah, there are sections that are not readable for an average person, but I think the basic gist came through splendidly.

Do you know what prompted the EFF to file this? I'm glad they did, don't get me wrong :)

raybeckerman said...

Thanks, tarky7. And thanks for joining us in the Comments.

Well, stevger, I'm guessing it's (a) the importance of the issues being bandied about, (b) the fact that Mr. Howell is unrepresented, (c) the fact that the judge, unlike the majority of judges in cases which are not properly defended, is not rubberstamping the RIAA's nonsense but has shown the intelligence to ask the right questions, and (d) the fact that the RIAA has tried to make hay out of the Howell case (see their telling the Barker and Cassin courts about it, their neglecting to tell those courts about the fact that Mr. Howell is pro se, and their neglecting to inform those courts when the Howell court vacated the erroneous decision on which the RIAA was trying to capitalize).

raybeckerman said...

Not to mention the fact that they probably cited the Howell case to the judge in Capitol v. Thomas without telling him that the decision on which they were relying had been vacated. (But I have no personal knowledge of this, since I still have yet to see the transcript in Thomas.)