Another Court Ruling Actually Does Say Making Available Is Not Distribution

from the better-decision dept

While the ruling in the Elektra v. Barker case got plenty of attention, even if some of it was misleading, the EFF points out that in another ruling on the same day (which got much less publicity) a court in Boston seems to have made a much stronger case for why making available is not distribution. Once again, the judge did not throw out the case, saying that an "offer to distribute" is still enough of a claim to have the case move forward to trial (at which point the copyright holder would need to show that actual distribution occurred). However, with so many different court rulings making so many different interpretations of "making available," there are going to be appeals and eventually it will move up the chain. If (as is likely) different appeals courts end up disagreeing it may eventually make it to the Supreme Court, where we can get a final ruling on whether making available is or is not the equivalent of distribution.


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  1.  
    identicon
    Bobbknight, Apr 3rd, 2008 @ 7:11pm

    Is It Available

    I think what will happen is that the current case law regarding illegal drugs will influence the making available/distribution issue.

    Though you think this an obtuse analogy, just look at where a guy gets busted for possession with intent to distribute crack cocaine. The total amount of drug in his possession amounts to only a misdemeanor, but if he also has in his possession any type of container with the drugs. Then the prosecution adds possession with the intent to distribute.

    We will be seeing the criminalization of petty infringement.
    The shared folder will be the plastic/glassine baggie.

     

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  2.  
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    zcat, Apr 3rd, 2008 @ 7:28pm

    Ummmm.. do we really want this?

    From the GPLv3 FAQ:

    GPLv3 gives “making available to the public” as an example of propagation. What does this mean? Is making available a form of conveying?

    One example of “making available to the public” is putting the software on a public web or FTP server. After you do this, some time may pass before anybody actually obtains the software from you—but because it could happen right away, you need to fulfill the GPL's obligations right away as well. Hence, we defined conveying to include this activity.

     

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  3.  
    identicon
    Anonymous Coward, Apr 3rd, 2008 @ 10:07pm

    Re: Ummmm.. do we really want this?

    You seem to be confusing a "license" with the "law". They're not the same thing. Just because you put something in a license, that does not make it the law.

     

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  4.  
    identicon
    Anonymous Coward, Apr 4th, 2008 @ 12:13am

    Re: Re: Ummmm.. do we really want this?

    It is law, "contract law"

     

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  5.  
    identicon
    Anonymous Coward, Apr 4th, 2008 @ 12:41am

    Re: Re: Re: Ummmm.. do we really want this?

    It is law, "contract law"

    If licenses are laws, then you'll be interested in knowing that I just wrote a license that says you're my slave. And don't try to worm out by saying that you didn't agree to it; laws apply whether you agree to them or not.

     

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  6.  
    identicon
    Anonymous Coward, Apr 4th, 2008 @ 5:11am

    Re: Re: Re: Ummmm.. do we really want this?

    "Contract law," I believe, is the subset of law governing contracts, not the notion that contracts hold the force of law.

    Regardless, you have to agree to a contract to have it binding.

     

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  7.  
    identicon
    zcat, Apr 4th, 2008 @ 1:14pm

    Umm, what?

    The GPL is a 'licence' -- permission to copy when that copying would otherwise not be permitted by copyright.

    "..nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so."

    And the authors of the GPL seem to believe that just making something available for copying is sufficient to invoke copyright law and thus make the GPL enforceable.

     

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  8.  
    identicon
    Anonymous Coward, Apr 4th, 2008 @ 3:37pm

    Re: Umm, what?

    And the authors of the GPL seem to believe that just making something available for copying is sufficient to invoke copyright law and thus make the GPL enforceable.

    No, they don't. The GPL specifies making available as a covered action whereas copyright law does not. If the GPL had not specified that action then by default the law would only cover distribution. That's why they thought it necessary to add that clause.

    But music doesn't usually come with a separate license and so depends on the default terms in copyright law. So the RIAA has been trying to find a judge to back-door "making available" into the law by declaring it to be the same as "distribution" (which is in the law).

     

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  9.  
    identicon
    Anonymous Coward, Apr 5th, 2008 @ 6:11am

    zcat wrote:
    "Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so."

    so then, by crossing the street, you acknowledge the right of a driver to hit you.

     

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  10.  
    identicon
    Anonymous Coward, Apr 5th, 2008 @ 4:51pm

    when are us judges going to tell the music industry to f**ko**. After all it is only copyright law, not murder.

     

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  11.  
    identicon
    Anonymous Coward, Apr 6th, 2008 @ 7:32pm

    Re:

    After all it is only copyright law, not murder.

    Copyright infringement IS the same as murder. Under US law corporations are legally "people", so if it destroys a business model and that causes a corporation to "die", then it IS murder and copyright infringers should be punished accordingly!

     

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  12.  
    identicon
    Al, May 30th, 2008 @ 2:57pm

    licenses/EULA's are not automatically rock solid. any portion of a license, EULA, or contract can be challenged for validity.

    why do you think standard contract language contains a "severability clause"? (without one, if a judge strikes down 1 part of a contract, the ENTIRE contract is unenforceable). Companies that license SW know full well their licenses can be challenged in court.

     

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