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), 15 Jan 2008 @ 1:27pm


    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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