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.

Filed Under: eff, howell, making available, riaa
Companies: eff, riaa


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  1. icon
    Mike (profile), 14 Jan 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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