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. identicon
    Scorpiaux, 14 Jan 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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