Another Court Rejects RIAA's 'Making Available' Claim

from the good-news dept

Yet another court has rejected the RIAA's "making available" theory of copyright infringement. As a central part to most RIAA cases against individuals for file sharing, the record labels have insisted that merely making an unauthorized music file "available" for file sharing is the equivalent of copyright infringement. Others have pointed out that the law is pretty clear that there needs to be actual distribution (i.e., a copy is actually made) before you can show infringement. The RIAA doesn't like that theory because the evidence they have usually only shows that a file is available, not that it was actually shared. The specific case at hand involved the RIAA asking for a default judgment against an individual who did not respond to charges of infringement, but the judge rejected the default judgment, noting that by using the "making available" standard, the complaint was insufficient. The judge, among other things, points to William Patry's book on copyright, where he explains that "without actual distribution of copies.... there is no violation [of] the distribution right" and also to the infamous Perfect 10 ruling concerning copyright infringement of thumbnail images.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    zcat, Feb 25th, 2008 @ 9:15pm

    Not a good precident

    GPL3 defines 'making available' as equivalent to distribution... do we really want to undermine RMS?

    Oh.. never mind :)

    reply to this | link to this | view in thread ]

  2. identicon
    Javarod, Feb 26th, 2008 @ 5:29am

    Making it available is the same as copyright infringement? Does that mean if I leave my door unlocked I can be sued for copyright violation? After all, someone could come in and copy my movies or music since I made it available.


    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Feb 26th, 2008 @ 5:38am


    No, javarod, it just means that your analogy is stupid.

    reply to this | link to this | view in thread ]

  4. identicon
    Seth, Feb 26th, 2008 @ 5:57am


    Maybe not the best analogy but flaming him doesn't make you sound any more intelligent. So either be productive to the thread or don't post.

    His point is valid though, there are many way to make copyrighted material available and for that to be interpreted as infringement is a bit of a stretch.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Feb 26th, 2008 @ 6:28am

    Re: Re:

    I wasn't trying to make myself sound smart. I was just pointing out how terrible his analogy was.

    reply to this | link to this | view in thread ]

  6. identicon
    David, Feb 26th, 2008 @ 7:13am

    Well, Javarod does make a good case of where do you draw the line on "making available"? Is a simple password enough? or do we need to protect it with high end encryption?

    I think leaving the door unlocked is a good analogy...

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Feb 26th, 2008 @ 8:23am

    Is there any valid reason besides copyright violation in putting copyright material in a file sharing program?

    reply to this | link to this | view in thread ]

  8. identicon
    Dalane, Feb 26th, 2008 @ 8:47am

    File sharing does not mean "stealing". Say you have a DVD and it gets scratched. Do you now have to go buy a new DVD? No you can download it and burn a new copy. After all you already own a license to have the movie.

    reply to this | link to this | view in thread ]

  9. identicon
    Dave, Feb 26th, 2008 @ 9:12am

    By the RIAA's rationale, cops should be responsible for car theft since they setup cars that are unlocked (or sometimes running) for thieves to steal.

    reply to this | link to this | view in thread ]

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