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 @ 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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