EFF Files Brief In Howell Case, Says 'Making Available' Is Not Infringement

from the infringement-needs-to-show-infringement dept

While much of the attention paid to the RIAA's case against Jeffrey Howell has been on the incorrect assertion that the RIAA was claiming Howell infringed simply for ripping his own CDs, what the RIAA is actually claiming is still quite questionable. What it was really claiming was that simply by putting any files (ripped or downloaded) into a shared folder, he was infringing. This is the same "making available" theory that the RIAA has been pushing for quite some time -- despite having courts clearly say that making available is not infringement. Of course, by constantly pushing this point in case after case (and usually losing), the RIAA has found a few judges who agree -- though, it almost always comes in cases where the defendant is acting as his or her own lawyer, rather than having a real lawyer defend the case. The key question is what part actually constitutes infringement. Is it actually having the copy made, or just offering the file up? With most courts agreeing that the actual act of making the copy has to occur, the EFF has filed an amicus brief in the Howell case, notifying the judge of all the various cases where "making available" has been rejected as being infringement.


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  1.  
    identicon
    Alfred E. Neuman, Jan 14th, 2008 @ 5:08am

    Silly Question Dept

    How do they prove that the computer in question was connected to the internet? By MAC address is not the correct answer.

     

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  2.  
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    Anonymous Coward, Jan 14th, 2008 @ 6:29am

    Were the computer not connected to the Internet, how would they ever have been charged with file sharing?

     

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  3.  
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    TriZz, Jan 14th, 2008 @ 7:11am

    'making available'

    Sue all the movie rental places...they're making movies available for copyright infringement. Also, while you're at it, go after all the libraries in the world. I mean, all you need is a library card and a kinkos and you're in business.

    This is utter BS. Why not go after these P2P programs for making the default setting go into a shared directory?

    I know, I know, it's about personal responsibility...but most people don't understand about shared folders and the consequences of it.

     

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  4.  
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    Just Me, Jan 14th, 2008 @ 8:58am

    #3

    "Movie rental places" typically pay a fee (royalty) to stock and rent the movie. Corner stores and such may not...

    The Library "making available" case was a strong deciding factor for the shape of the law here in Canada - why is a shared folder wrong if a Library can have a photocopier right inside it's doors. So, in Canada at least, making available is not an argument.

    But from the sounds of it there is also precedent in the States to say the same.
    I'd suggest somebody lobby to make it law but the only ones to answer that call would be pocketed politicians who would push to make it illegal.
    ...for the sake of the children somehow I'm sure.

     

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  5.  
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    TriZz, Jan 14th, 2008 @ 9:53am

    Re: #3

    Yeah, but the point is that the "movie rental places" that pay royalty fees are to cover the fact that they're making a profit off of renting their product. The royalty certainly does not cover the people who rent a movie, go home, burn it, and return the movie.

    ...and that's the point I'm trying to make. Everything is available for copyright infringement. Type any search string into Google images. The courts have made Google not liable for it's availability of infringement, why would this be any different?

    I don't agree with it. Copyright infringement is wrong. BUT, the availability to infringe is everywhere.

     

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  6.  
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    some other guy, Jan 14th, 2008 @ 10:34am

    Re: Re: #3

    "Copyright infringement is wrong."

    Illegal, yes. Why do you say 'wrong'?

     

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  7.  
    identicon
    Scorpiaux, Jan 14th, 2008 @ 11:35am

    That file-sharing folder for Kazaa users

    Why did Howell place those music files in the file sharing folder on his computer, the folder that Kazaa users could readily access? Was it ignorance? Was it innocence? Did the dog that ate the homework do it? Where are the conspiracy theorists when you need them?

     

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  8.  
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    bt1980, Jan 14th, 2008 @ 11:48am

    All human communication IS copying

    I am sure that someone has written this sentence before. If people are not allowed to copy and enhance ideas, media, devices, or anything then progress cannot be achieved. Intelligence is based upon the ability to create and identify patterns. Intellectual property, patents, copyrights are all money-grabs for a commodity that costs nothing to share and could enrich the lives of the entire human population. I just read that MIT has a system called Open Courseware. All of the content of their classes is freely and publicly available online. This is an amazing standard in the free distribution of educational materials. Back on entertainment media topics though: would we be able to prosecute every person who lent out a CD or DVD to a friend? What about OTA television channels that i pick up with my antenna? They are providing DRM-free access to shows that I could vidcap! tsk tsk.

     

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  9.  
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    Scorpiaux, Jan 14th, 2008 @ 2:46pm

    Read the brief

    I know many of you have probably read all or part of the EFF brief. Have you read the Atlantic brief?

    Read the supplemental brief on:

    http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_howell_071207RIAASupplementalBrief

    Pages 6, 7 and 8 are very specific and cite The US Copyright Office's conclusion that the making available of copyrighted works is an infringement of copyright.

    So, before you declare Howell and the EFF as the winners, read the brief, especially pages 6, 7, and 8 and take note that the reasoning and presentation of evidence is extremely strong against Howell.

    I can almost hear the wailing, "Waaahh! The judge was bought off! Waaahh! The Congress was bought off! Waaahh! I want my free music! I want a free lunch! Waaahh!"

    Of course, the judge could find in favor of Howell and open the floodgates for massive downloading without penalty. Yeah, right. Or perhaps he could refer the case for trial rather than exercise summary judgement. That might be the best course of action because a decision by a jury of peers could silence a lot of critics on all sides.

     

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  10.  
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    Mike (profile), Jan 14th, 2008 @ 3:03pm

    Re: Read the brief

    I know many of you have probably read all or part of the EFF brief. Have you read the Atlantic brief?

    Yes, of course we have.

    Pages 6, 7 and 8 are very specific and cite The US Copyright Office's conclusion that the making available of copyrighted works is an infringement of copyright.

    Yes, we've discussed this in the past. The US Copyright Office's head is a well known copyright maximalist. She has made it clear that her point of view is to side with the industry, rather than with what's best overall. Her opinion is an important one, but it doesn't change the point that's being discussed. So far, most judges have disagreed with Peters' assertion concerning "making available."

    Of course, the judge could find in favor of Howell and open the floodgates for massive downloading without penalty.

    Again, Scorpiaux, I have asked you to be careful in taking the time to understand and you appear not to have done so. Even if the judge finds in favor of Howell on the question of making available, that's purely from the *upload* side, not the download side, and it wouldn't free people to "massive downloading without penalty." In fact, quite the opposite. It would merely mean that the RIAA actually has to show infringement first.

    I realize that understanding the nuances behind these discussions is difficult, but it really helps the conversation if you at least understand the basics.

     

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  11.  
    identicon
    Scorpiaux, Jan 14th, 2008 @ 3:09pm

    Re: Read the brief

    "I realize that understanding the nuances behind these discussions is difficult, but it really helps the conversation if you at least understand the basics." - Mike

    We will see who understands the basics and who doesn't when a decision is rendered. I can wait. It won't be long.

     

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  12.  
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    Scorpiaux, Jan 14th, 2008 @ 3:18pm

    Re: Read the brief

    "She has made it clear that her point of view is to side with the industry, rather than with what's best overall." - Mike

    Another show of arrogance. "What's best overall" is not necessarily the opposite of agreeing with previous plaintiffs in the recording industry in specific cases. You need to learn to temper your posts with less strident verbiage. It might win points here on your web site and a few other bloggers with views similar to yours, but it shows an attitude of "Don't confuse me with the facts. I've already made up my mind." That's not condusive to winning friends and influencing people.

     

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  13.  
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    Mike (profile), Jan 14th, 2008 @ 3:29pm

    Re: Re: Read the brief

    We will see who understands the basics and who doesn't when a decision is rendered. I can wait. It won't be long.

    Uh, the comment I made that on had nothing to do with the case at hand (reading comprehension again), but about whether such a decision would "open the floodgates." It's pretty clear to anyone actually taking the time to read and understand that NO ONE here is saying that file sharing of unauthorized material is legal. It's just a question of what kind of evidence you need.

     

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  14.  
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    Mike (profile), Jan 14th, 2008 @ 3:31pm

    Re: Re: Read the brief

    of "Don't confuse me with the facts. I've already made up my mind." That's not condusive to winning friends and influencing people.

    Scorpiaux, so far the only person ignoring the facts has been you. Which facts have we ignored?

    So far, you have ignored the very definition of fair use, the basic explanation of what copyright is actually for, your own inability to understand the difference between plagiarism and copyright among many other factually incorrect points. If you have additional facts for us, we're open to hearing them, but so far, you haven't provided us with anything new or anything convincing.

     

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  15.  
    identicon
    Scorpiaux, Jan 14th, 2008 @ 7:10pm

    Re: Re: Read the brief

    "Even if the judge finds in favor of Howell on the question of making available, that's purely from the *upload* side, not the download side, and it wouldn't free people to 'massive downloading without penalty.' In fact, quite the opposite." - Mike

    This is an excellent example of your twisting and turning and spinning. The fact that it presents an absurdity is lost on those who accept what you post without question. The picture you have painted here is one where there could be millions of people sitting in front of their monitors and keyboards happily content to have shared folders contain only their own legally acquired music files, and not making any attempt to download anything from the millions of others whose shared folders contain only legally acquired music files. And the reason everyone of those millions would be wearing halos is because a single judge ruled that making files available for uploads is OK, but it is not OK to download them. That's just a load of bull. That's the reasoning given by a former corrupt governor of Louisiana who attempted to give legitimacy to his receipt of bribes by saying that the law said that it was illegal for citizens to give bribes but there were no laws prohibiting the governor from receiving them.

    I didn't misread a damned thing in your post. You are just trying to have it both ways and are simply intellectualizing your attempt. Intellectualizing in this instance is a defense mechanism that is a sister to projection. You know the reasoning and accompanying actions are not acceptable, so you distance yourself from them. You spend a lot of time and words simultaneously condemning copyrights and the rights of artists while you also occasionally point out that it is illegal to download unauthorized copies of copyrighted music. Calculating, yes, but foolproof posturing, no.

     

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  16.  
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    Mike (profile), Jan 14th, 2008 @ 11:22pm

    Re: Re: Re: Read the brief

    The picture you have painted here is one where there could be millions of people sitting in front of their monitors and keyboards happily content to have shared folders contain only their own legally acquired music files, and not making any attempt to download anything from the millions of others whose shared folders contain only legally acquired music files.

    Scorpiaux, you do understand that the rule of law that you're so fond of actually requires proof, right? All we are saying is that before you can convict someone of a crime, it requires some proof that the actual crime occurred. I am not saying that people are sitting there with music in their shared folders and not downloading stuff, but you (as per usual) seem to have confused two different things.

    No one has been sued by the RIAA for downloading files, so I'm not even sure why you would bring it up. They have only been accused of uploading files. In order to prove that someone uploaded the files, the burden is on them to show that an actual unauthorized upload occurred.

    Whether or not the individual downloaded files is meaningless here, as it's not what the case is about. So for you to bring that up, suggests (again) that you have difficulty understanding the nuances of a case in order to rant on about how piracy is bad.

    I do not deny, nor would I deny, that many people download song illegally. I do not think that this is right. However, before we throw those people in jail, the rule of law states that the accuser (the RIAA) needs to present credible evidence that an UPLOAD occurred. The discussion here (which you seem to have missed by a country mile) is about whether or not that evidence has actually been presented. Whether or not people download is a separate issue that has no bearing on the Howell case at all.

    And the reason everyone of those millions would be wearing halos is because a single judge ruled that making files available for uploads is OK, but it is not OK to download them. That's just a load of bull

    I see. And do you propose that we also arrest people who have cars that can speed? Do you propose that we arrest people who think about robbing a bank? Here in the civilized world, we actually wait until there's proof. It's quite easy to obtain proof that someone has uploaded an actual file -- so your argument that everyone would be scot free is incorrect. The problem we're pointing out is that the RIAA appears NOT to have that evidence in this case. For the sake of the rule of law (which you insisted is important), don't you think it's worth having the RIAA prove that actual infringement occurred, rather than simply saying it thinks infringement might have occurred?

     

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  17.  
    identicon
    Scorpiaux, Jan 15th, 2008 @ 11:26am

    "For the sake of the rule of law (which you insisted is important), don't you think it's worth having the RIAA prove that actual infringement occurred, rather than simply saying it thinks infringement might have occurred?" - Mike

    -----------

    If you want to pretend for the sake of your argument and for the sake of pleasing your audience that the RIAA is super dumb and has not and cannot prove that actual infringement occurred, you are in for a surprise. As I stated in a previous post, I will wait for a decision in the case. I do not recall reading in any of the legal documents filed in this case that are available to the public that the RIAA (Atlantic is the actual plaintiff) claims that "it thinks infringement might have occurred." Atlantic has laid out its case in detail and very competently. It did not lay out its case in a wishy-washy sophomoric fashion. The RIAA may not behave as you would have them behave. The RIAA may be ruthless, but legal, in its dealings with artists, vendors, and clients, but dumb it isn't. It may or may not have made the best (under the circumstances) legal and economic decisions, but that does not make them the dumb bunnies you like to characterize them as being. Your carricature of the RIAA is just another strawman. I could just as easily paint the EFF as a bunch of technocrats who believe they are brilliant and the rest of us are stupid and as such their point of view should prevail and we should support a technocracy as the best form of government. But I don't do that. I also don't insinuate that anyone who believes the "stuff" they put out is an EFF lackey without a mind of his or her own. If I did, that would be just me constructing a strawman that could be easily burned as an effigy.

    Most everything posted here on this topic is just so much peripheral piffle. Everything in this lawsuit comes down to the answer to one question, "Is making copyrighted material available to copyright infringers a copyright infringement itself?" While there are other issues, this one is a key one. The arguments have been made on both sides. A judge will decide, not bloggers and not blog posters.

    Btw, your constant reference to my reading comprehension is not only tame and lame but boring and a vain attempt to ignore the substance of what I post. As you should know by now, it has not had the slightest effect on my positions or how I explain them. I am not thin-skinned at all. So if you want to waste time and energy continuing to post such trash, have at it. It won't change a thing.

     

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  18.  
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    Mike (profile), Jan 15th, 2008 @ 1:27pm

    Re:


    If you want to pretend for the sake of your argument and for the sake of pleasing your audience that the RIAA is super dumb and has not and cannot prove that actual infringement occurred, you are in for a surprise.


    Scorpiaux, please, I beg of you, go back and read what I wrote. I never said that the RIAA cannot prove that actual infringement occurred. I said exactly the OPPOSITE in fact. I said there are many ways they can show that actual infringement occurred. However, simply saying that someone has files in a shared folder does NOT show that actual infringement occurred. So your statement here is meaningless (other than demonstrating again questionable reading comp skills).

    The point I am making is that if the RIAA is going to accuse someone of infringement, they should have to show that actual infringement occurred. I didn't say they could not -- just that they need to. Your argument, as far as I can make it out is that they shouldn't need to show infringement occurred (a shared folder is not evidence of infringement) because they've showed that infringement has occurred. Do you see why that's nonsensical?

    The RIAA may be ruthless, but legal, in its dealings with artists, vendors, and clients, but dumb it isn't. It may or may not have made the best (under the circumstances) legal and economic decisions, but that does not make them the dumb bunnies you like to characterize them as being.

    I never suggested they were dumb. Short-sighted, absolutely. But I never said they were dumb.

    I also don't insinuate that anyone who believes the "stuff" they put out is an EFF lackey without a mind of his or her own.

    I'm not sure what you are insinuating here, but we hardly agree with the EFF on everything that they do. However, when I disagree with someone, I back it up with reasoned argument. You seem to be claiming I have not done that, and yet you have yet to disprove anything that I've stated.

    Everything in this lawsuit comes down to the answer to one question, "Is making copyrighted material available to copyright infringers a copyright infringement itself?"

    Indeed. Did we say anything else?

    The arguments have been made on both sides. A judge will decide, not bloggers and not blog posters.

    Again, we are agreed. We're not trying to argue the case here. We're just trying to discuss the reasoning. I'm not sure why you have so much trouble separating the two things.

    Btw, your constant reference to my reading comprehension is not only tame and lame but boring and a vain attempt to ignore the substance of what I post.

    I wouldn't bring it up if it wasn't so glaring. It's fairly startling that almost every one of your comments takes some statement of mine and pretends it says something other than it did. For example, you statement at the beginning of this post suggesting that I said the RIAA could not show that infringement occurred. I never said such a thing at all. I am not bringing it up to impact your position. I am bringing it up to suggest that you take the time to understand what we are discussing so you can make a more reasoned argument.

    So if you want to waste time and energy continuing to post such trash, have at it. It won't change a thing.

    I see. So you would prefer to continue misstating facts, failing to respond when we point obvious false statements you make and proudly being unable to respond to the more nuanced issues being discussed here? Fair enough -- but I can't for the life of me figure out why.

    When I bring up the reading comprehension issue, it is not as an insult, and I apologize if you take it that way. It is simply because you are not doing yourself any favors in this discussion. You repeatedly claim we have said something other than what we have said, you repeatedly confuse different idea and you have repeatedly displayed ignorance of the actual discussion at hand. When confronted on it, your response generally falls back on "well, all that matters is what the judge says," which, in itself, displays an ignorance of what's actually being discussed here. You do realize, for example, that this one ruling is fairly meaningless in the larger discussion of whether or not "making available" is considered infringement, right?

     

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  19.  
    identicon
    Scorpiaux, Jan 15th, 2008 @ 2:34pm

    Re:

    From
    http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_howell_071207RIAASupplementalBrief

    on October 2-4, 2007, national counsel for Plaintiffs tried the case of Capitol Records, Inc. v. Thomas, Case No. 06-cv-1497 (MJD/RLE) (D. Minn.), which involved claims of copyright infringement that are virtually identical to the claims at issue in this case and resulted in a verdict for the record company plaintiffs totaling $222,000.00. During the trial, an issue arose in the context of jury instructions as to whether it is a violation of the exclusive right of distribution for one to make sound recordings available on a peer-to-peer network, without proof of actual receipt of the sound recording by a third-party. After hearing argument and reviewing the case law, the Thomas court agreed with the record companies' position and instructed the jury as follows:

    The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.



    =======

    Mike, you said that you had already read this although you said "we." I do have doubts about it being read by others. Regardless, it is about as direct as it can be. Care to comment on it?

     

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  20.  
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    Mike (profile), Jan 15th, 2008 @ 10:34pm

    Re: Re:

    Mike, you said that you had already read this although you said "we." I do have doubts about it being read by others. Regardless, it is about as direct as it can be. Care to comment on it?

    Sure. That was the most controversial part of the Jammie Thomas case (who, by the way, I should note I believe -- and have stated clearly on this site -- is guilty of infringing on copyrights and made a huge mistake in fighting the RIAA's case when she should have paid up and apologized). This was one of the first times that a judge actually made that claim, and it's the key part of Thomas' appeal, and will likely travel up the court system.

    A single district court saying that is fairly meaningless (especially when compared to all the district court judges who have said otherwise). As with these sorts of things, eventually the issue will make its way up to higher courts until a firm precedent is set. However, if you're simply going on the general consensus among district judges who have ruled on this issue, it appears to be that "making available" is not infringement. There are a few exceptions (such as this one), but more have ruled the other way. Either way, it's considered unsettled law until the Supreme Court weighs in.

    That doesn't mean that we can't express our opinion about what makes sense. In fact, it's important to have that discussion in the open. So, we are quite clear: we feel it's a miscarriage of justice to claim that a shared file is prima facie evidence of infringement when there's no proof of an actual illegal copy being made. There are plenty of ways to show that actual infringement occurred. It seems only fair that the RIAA (who has the burden of proving infringement) shouldn't be able to rely on circumstantial evidence of a "shared folder."

     

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  21.  
    identicon
    Toad, Jan 25th, 2008 @ 7:25am

    As others have pointed out, "made available" includes the CD you purchase and then loan to your kid sister. The US Copyright office may well disagree with me, but it seems that it's the person who makes or accepts a copy who is in violation of the law, not the person who made it available.

    However, anyone who doesn't understand and believe that the RIAA is backing these suits to chill pirated music and to attempt to maintain it's stranglehold on all music production in America is a moron. Is there a legal defense fund for Mr Howell? I'd like to contribute. The RIAA is a bigger threat to freedom and fair use than Jeffrey is.

     

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