p2pnet - rss feed: Elektra v Barker / London-Sire v Doe
p2pnet news | RIAA News:- Same day, two federal courts, two different rulings on “making available,” says the EFF’s (Electrronic Frontier Foundation) Fred von Lohmann.
He’s talking about the Tenise Barker case and London-Sire v Doe featuring, says London-Sire Records, “individual computer users — mainly college students — who use ‘peer-to-peer file-sharing software to download and disseminate music without paying for it”.
London-Sire is a “reactivated” Warner label.
In Deep Links, von Lohmann goes on >>>
As we mentioned yesterday, a New York court in Elektra v. Barker gave a boost to the recording industry by ruling that an offer to distribute a file on a P2P network can infringe the distribution right, even if no one ever actually downloaded it from you. Well, on the same day, a Massachusetts court in London-Sire v. Doe ruled just the opposite, holding that “merely exposing music files to the internet is not copyright infringement” (we just received the ruling today).
EFF filed an amicus brief in this case (formerly known as Atlantic v. Does 1-21), and our arguments appear to have found a more receptive audience in Boston that they did in New York City (the judge thanks us for our participation on page 11). The 52-page ruling is the most extensive analysis yet of the recording industry’s “making available” argument, which claims that you infringe copyright merely by having a song in your shared folder, even if no one ever downloads it.
As we discussed yesterday, a key issue is whether a mere “offer to distribute” is enough to infringe the distribution right, in light of the fact that a mere offer can be enough to constitute “publication.” Unlike the court in Elektra v. Barker, the judge in London-Sire v. Doe concludes that “distribution” and “publication” are not identical — “even a cursory examination of the statute suggests that the terms are not synonymous.”
If you are interested in the details, the court’s analysis is highly illuminating (p. 24-27), touching on a number of earlier rulings, such as Hotaling v. Church of Jesus Christ of Letter-Day Saints and A&M v. Napster (copyright nerds will recognize those as pivotal decisions in this area).
While this is an important victory, the decision may not change much for most individuals targeted for RIAA lawsuits. The judge concludes that evidence of an “offer to distribute” is enough to permit a lawsuit to move forward, even if it’s not enough to decide the matter.
That means that the RIAA will keep filing lawsuits based on the investigations of MediaSentry. Moreover, the court rejected EFF’s argument that the distribution right does not reach digital networks at all.
In light of the disagreement between these two rulings, it’s likely that these issues are headed for more consideration by other courts. But we’re grateful that these judges (in both Elektra and London-Sire) are doing a thorough job considering these important questions, instead of just taking the RIAA’s word on what the law is.
Stay tuned.
Tenise Barker - Tenise Barker, the RIAA and ‘making available’ April 2, 2008
Deep Links - Making Available != Distribution, Says Court in London-Sire v. Doe, April 2, 2008
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April 3rd, 2008 at 3:47 pm
When judges cannot agree what is infringement, how can a school kid or anyone know when he/she may infringe and how can anyone say it was willfull?
April 4th, 2008 at 4:49 am
I lent my full 100 CD album to a friend, mind you, for listening purposes only. The CDs had been made available to me by the record store. Did I make it avallabe for infringement purposes too if my friend, without telling me decided to copy the CDs? Will RIAA sue me? Or my friend? Or the record store? Or all?
April 4th, 2008 at 8:53 am
I was sued for infringement. The judge said there was no infringement. The record compan appealed and the appeals court and three judges confirmed there was no infringement. The record company went to the Supreme Court. The Supremes said the four previous judges were mistaken because there was infringement. Now here I am, after having thought and researched the law like the first three judges, flat broke because I have to pay the record company.
The judges typically say ignorance of the law is no excuse.
Can someone explain to me what is wrong with tis picture?
April 4th, 2008 at 10:06 am
“You can often tell if someone understands how wrong their actions are by the lengths to which they go to rationalize them.”
The above gem is the start of today’s 94-4-08) NY Times editorial, which deals with the Bush administration torture of prisiones.
And speaking of torture and voluminous documentation….
Isn’t it odd that copyright infringement cases againt RIAA customes wind up having thousands of pages as evidence and judge rulings? Why must so much confusion be “cleared” when the alleged infringers themselves know hardly anything about copyright law, related jurisprudence and related international treaties? Is it torture too? Think about it.