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MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits | Threat Level from Wired.com
Profs tell Thomas judge making available isn't distribution
Profs tell Thomas judge making available isn't distribution
Judge deals another blow to RIAA's making available theory
One of the pillars of the RIAA's legal campaign has been its assertion that making a file available for download equates to copyright infringement under the copyright act. There have only been a couple of decisions addressing the question so far. One that came down today in Atlantic v. Howell is the biggest rejection yet to the RIAA's "making available equals infringement" argument, as a federal judge has denied the labels' motion for summary judgment, setting the stage for a trial later this year.
Recording Industry vs. The People
The 52-page decision recognized privacy rights of students, and the existence of First Amendment issues in disclosing the identities of anonymous people accused of copyright infringement, and engaged in a balancing test between those rights and the rights of copyright owners, and quashed the subpoena in the first instance.
The Patry Copyright Blog: The recent making available cases
There have been three opinions in six weeks on the suits brought by RIAA in which the issue of the alleged making available right as well as infringement of the distribution right have been raised. They are not the first opinions, nor will they be the last, but they are interesting in their own right, and are noteworthy because the judges involved took the time to address the issues seriously and thoughtfully.
Judge kills RIAA subpoena: making available not infringement
Earlier this week, a decision by the judge presiding over Elektra v. Barker was widely misreported as providing substantial support for the argument that making a song available over a P2P network constitutes copyright infringement. Another decision rendered the same day and just brought to light by the EFF actually does come to that conclusion, and the judge in that case has quashed a subpoena issued by the RIAA to learn the identities of four anonymous Boston University students.
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Judge Gertner did find another EFF argument unconvincing, however. In this and other cases, the EFF had argued that the Copyright Act mandates that an actually, physical copy change hands in order for infringement to occur. Not so, according to the judge, who ruled that the EFF was relying on an "overly literal" definition of "material object." Whether the distribution takes place electronically or physical makes no difference.
As was the case in Elektra v. Barker, the judge did note that an "offer to distribute" is sufficient basis for a copyright infringement claim, which means that the RIAA can continue to make that allegation in its lawsuits. There is, however, a big difference between having evidence for a copyright infringement claim and showing by a preponderance of evidence that infringement actually took place.
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