Making Available and infringement
p2pnet.net news view:- Canadians will remember that when reporting BMG Canada v Doe (The CRIA filesharing case”), many journalists parroted the CRIA misinterpretation that the case was lost due to a lack of a “making available” exclusive-right in Canada. Anyone who read the case knew the primary “issues” were that Canada has stronger privacy legislation than the USA (why there was a discovery case at all), and that CRIA members provided no evidence of infringing activity.
All they needed to have done was download and listen to some songs, and the names of the John and Jane Doe’s would have been legally disclosed to them by the ISPs.
A case is currently before the US courts where the RIAA is testing their questionable legal theory concerning “making available”. An article in January by lawyer Ray Beckerman, author of The Recording Industry vs The People asked the question, Is ‘Making Available’ Copyright Infringement?. This legal theory has now been argued in Elektra v. Baker, with a transcript now available.
While the DMCA, the most hated law on the Internet, represents one of the most draconian interpretations of the controvercial 1996 WIPO treaties, it will be interesting to finally find out whether this legal theory will survive court scrutiny within the USA.
If the RIAA looses this aspect of the case, as I suspect they will, will this cause the RIAA to lobby to get the USA added to the “Special 301 Watch List”?
It was largely misinterpretations of the BMG case and the questionable legal theory suggesting that “making available” should itself be considered an infringement that causes people to incorrectly believe that Canada would be off of the 301 report if we ratified the 1996 WIPO treaties.
Russell McOrmond – p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons). He's also the CLUE policy coordinator.]
Also See:
p2pnet – End of the RIAA terror reign?, January 1, 2007
p2pnet – The RIAA vs Tenise Barker, January 29, 2007
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February 28th, 2007 at 11:46 am
“All they needed to have done was download and listen to some songs, and the names of the John and Jane Doe’s would have been legally disclosed to them by the ISPs.”
-would thay not have had to dl a song exclusivly fom they targeted filesharer to prove they were indeed making available ?