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
    Toad, 25 Jan 2008 @ 7:25am

    As others have pointed out, "made available" includes the CD you purchase and then loan to your kid sister. The US Copyright office may well disagree with me, but it seems that it's the person who makes or accepts a copy who is in violation of the law, not the person who made it available.

    However, anyone who doesn't understand and believe that the RIAA is backing these suits to chill pirated music and to attempt to maintain it's stranglehold on all music production in America is a moron. Is there a legal defense fund for Mr Howell? I'd like to contribute. The RIAA is a bigger threat to freedom and fair use than Jeffrey is.

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