Viacom seems to have a bit of a multiple personality when it comes to online video. It's famously suing YouTube for $1 billion because some clips of TV shows have shown up on the site, but at the same time, it's been aggressively putting its own shows on a variety of sites. Yet, for the most part, it's focused on having full control -- that is, making them streaming versions only, on specific sites, often complete with advertising. However, it looks like the company is finally realizing that a little uncontrolled distribution isn't such a bad thing. Viacom-owned Spike TV is trying to promote a new TV show by distributing a commercial-free, DRM-free download of the show through a variety of sources including P2P system Limewire. The company admits that it's just trying to entice viewers to watch the series on TV when it debuts later this summer, but it makes you wonder how the company can stand up in court complaining about YouTube, when its out there telling people to do whatever they want to help promote this other show. In fact, the folks behind this offering admit that DRM would have defeated the purpose, which is to get the show seen by as many people as possible: "We're trying for a bit of a ubiquity here, to go where the people are." Wonder if this story will make its way into the Viacom-YouTube lawsuit.

While there's been a big ongoing discussion in various courtrooms concerning the question of whether or not making unauthorized files available for download is copyright infringement, there's another interpretation of copyright law that many copyright scholars agree with -- but which the RIAA and the MPAA would certainly prefer you not hear. I'm at the San Francisco MusicTech Summit and on an early (and not particularly well attended) session in the morning, intellectual property lawyer Andrew Bridges made a fascinating argument: that if you follow the actual text of existing US copyright law, uploading unauthorized content does not infringe the distribution rights of copyright. This goes even beyond the whole "making available" question, by saying even the uploading doesn't violate the law directly.

The reasoning requires a very literal reading of the law. Section 106 of copyright law lists out the specific "exclusive rights" granted under copyright law to copyright holders, including things like reproduction rights, performance rights and distribution rights. The text of the distribution right is: "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;" From this reading, one might conclude that uploading a file is a "copy." But if you go to Section 101, which holds the definitions for the law, it states (quite clearly):

"Copies" are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed.

Note the emphasis on material objects. As such, you can read the law, as written, to conclude that passing around the song itself, which is not a material object, is not actually an infringement of the distribution right under the current law.

Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it. He says he'll continue to make the argument, but that it has not been effective. Also, as Bridges noted in making the original statement, just because the distribution right isn't infringed, doesn't mean there aren't other issues. For example, whoever downloaded the file downloaded it to a material object (the hard drive) probably violates the first exclusive right, the "reproduction" right. And, thus, an argument could be made that the person who uploaded the file contributed to the violation of the reproduction right. However, based on this argument, it does seem clear that uploading a file is not, technically, a violation of the distribution right under copyright law -- not that the courts recognize that. Of course, if the courts ever did recognize this fact, you could bet that within a matter of days, a Congressional Representative would introduce an amendment to copyright law to change the definition of "copy" to include content not tied to a material good.

The lawsuit of Atlantic v. Howell got a ton of attention late last year when some folks, including the Washington Post, misinterpreted an RIAA filing to suggest that the RIAA had claimed that merely ripping your CD to your computer was file sharing. While the RIAA may actually believe that (and has made other statements to that effect), the filing in this case did not say that at all. Instead, it clearly stated that it was the combination of ripping the CD and putting the music into a shared folder that made the songs no longer "authorized." It was simply yet another version of the RIAA's theory that "making available" is the equivalent of distribution for copyright purposes. Still, based on this theory, the RIAA asked for summary judgment against Howell. The court has now come out with a detailed and well reasoned decision completely rejecting the RIAA's "making available" theory, highlighting why it does not appear to be supported by copyright law. It's worth reading if you're interested in this stuff. Either way, the RIAA isn't getting its summary judgment, and the case will proceed later this year.

Every few months over the past few years, we've heard stories about how some companies somewhere were betting on people watching broadcast television on their mobiles. The problem, however, is that it's always been companies betting on the phenomenon -- and not users clamoring for it. And, despite wild predictions from analyst firms who sell their reports to eager companies who want to convince their investors that something big is coming, almost every real world test has shown that people just aren't that interested in watching broadcast TV on their mobile phones. Sure, there are some people who will watch it, but two things that don't seem to go together all that well are "broadcast television" and "being mobile." Broadcast television is a "lean back" technology that you watch when you can sit back and relax. That generally doesn't fit with being mobile. Yet, despite all of these problems, it seems that a bunch of television networks are, once again, betting that people will want to access broadcast television from their mobile phones, despite little evidence to support that notion. A lot of money is going to get spent (and lost) before all of these companies realize they should have focused on offering something that people actually want.

We all know that the RIAA has been pushing for a certain definition of what constitutes "distribution" online these days (which the courts are still in flux over). An anonymous reader points to a case in France that the RIAA may want to pay attention to -- where it may find itself siding with some strange bedfellows: open source developers. Apparently, some of open source developers have sued the large French ISP Free/Iliad for failing to offer up the software used in the 3 million routers that customers use, despite the fact that it includes GPLed software (which requires that any software you distribute also be available to others for free). The ISP has responded by claiming that it hasn't actually distributed the software, since the routers are still officially a part of its own network -- and therefore the software doesn't have to be offered up.

In other words, simply giving the routers to users doesn't count as distribution in his definition -- which would certainly go against the RIAA's "making available is distribution" claim). However, as the link above suggests, it could get even worse. If you follow the same definition that Free/Iliad is making, then an ISP could purchase a site license for certain applications or content and then let everyone on its "network" access it, since it wouldn't be "distributing" it. Thus, suddenly, it may be in the RIAA's best interest to side with a bunch of open source developers before the definition of "distribute" in France gets defined in a way that the RIAA wouldn't much appreciate.

Last summer, the EFF sued Universal Music Group, after UMG had eBay takedown the sales of certain CDs. The CDs were promotional CDs, purchased legitimately by a guy going to LA record stores. However, UMG claimed that the CDs, as promotional items, were still the property of Universal Music Group. The EFF charged that UMG was abusing the law, specifically by ignoring the right of first sale, which is enshrined in copyright law allowing you to resell CDs or other works that contain copyrighted material. In response, UMG has now filed a brief that says that throwing out a promotional CD is unauthorized distribution.

Effectively, UMG is saying that merely by putting some fine print on a CD, it can effectively "own" that CD forever. If the court agrees, this would have some rather stunning ramifications, effectively wiping out the first sale doctrine. Record labels could then include similar language on all CDs, not just promo CDs, and then basically create its own copyright rules, preventing any use other than what the record label decided to allow. That would seem to go against much of historical precedent (and basic common sense) surrounding copyright. Courts in the past have noted time and time again that just because you say something is true, it doesn't mean it necessarily is true. Hopefully the court will make that point once again.

Well, try to sort this one out. Slashdot, News.com and Ray Beckerman are all saying that the court in the Elektra vs. Barker case have dealt the RIAA a "setback" by rejecting the "make available" theory of copyright infringement. That sounds good, right? But hold on. The EFF (who filed an amicus brief against the "making available" claim), Billboard and ZeroPaid are all claiming a big RIAA victory in the decision. It would certainly appear that both claims are in complete contrast to one another.

The reality is somewhere in between -- but leaning very much (unfortunately) towards the RIAA's view of things. If you haven't been following the debate, the RIAA (and the MPAA) have been claiming that they can sue someone for copyright infringement if they put unauthorized files into a shared folder, i.e., making those files available to be shared. Others, such as the EFF, point out that in order to violate copyright law, you have to show that someone actually distributed the unauthorized file, otherwise, it's hard to see how they actually violated the law (i.e., no copy was made, thus no copyright violation). I find this latter argument more convincing, but it's certainly unsettled law. Courts have mostly split on the issue, with some deciding one way and others deciding the other. The RIAA likes to claim that this is settled law -- but it is not.

This latest case became a battleground over the issue, with both viewpoints getting a bunch of amicus briefs from third parties (including the Justice Department, who sided with the RIAA). It also took place in a court that is recognized as having a good grasp on copyright issues, meaning that it could weigh more heavily on other court decisions. So how did it actually play out when you have both sides claiming victory? Well, read the full confusing decision below to see:

What appears to have happened (and I'm no lawyer), is that the court was convinced that "publishing" and "distribution" are synonymous under the law. Thus, "publishing" content could be seen as "distribution." The EFF's response convincingly argues why this is wrong, but it's a bit late now. Thus, under that definition, if the court is convinced that putting a file into a shared folder is the equivalent of "publishing," then that could be a violation. However, the court hedges a bit, by saying that "making available" by itself is too broad and not clearly supported by the law (or the courts). So, as far as I can read it, it's saying that "publishing" is distribution, so the RIAA (or any other copyright holder) can get away with showing evidence of publishing. At the same time, it argues that merely "making available" isn't enough to be infringement, but if the copyright holder can convince the court that putting a file in a shared folder is the equivalent of "publishing" then that's good enough. So, yes, technically the court said making available isn't infringement, but it also expanded the definition of distribution such that it may just be a technicality that "making available" isn't infringement. This ruling pretty clearly leans towards the RIAA's belief in how copyright law should act.