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, 15 Jan 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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