August 5th, 2008
'Making available' argument rapidly dying well-deserved death
I’m passing along Ray Beckerman’s post on two recent cases that show the RIAA’s attempt to use a “making available” theory to show copyright infringement is clearly on the way out. The Copyright Act clearly requires a showing that the defendant transferred the content to someone else; the RIAA has been arguing that merely having files in a publicly available folder (that is, the Shared Folder in a P2P program, the kind the program creates automatically without most users understanding how it works) is sufficient to quality as distribution. Here’s Ray’s comment:
It looks to me like we are now past the high water mark of the RIAA/MPAA’s attempt to rewrite copyright law. The credibility of their radical arguments is gone, and the tide is ebbing on their reign of terror.
The trend I am seeing is that judges are reading the statute and following the statute, the one exception being Judge Karas’s decision in Elektra v. Barker, in which he incorrectly equated “distribution” with “publication”, a result he reached by elevating scraps he’d read from the legislative history over the plain wording of the statute itself.
The high water mark of the madness was probably the RIAA/MPAA’s success in getting Judge Davis to disregard the jury instruction he had planned to give, and to use their instruction, which disregarded — indeed contradicted — the plain words of the US Copyright Act, in Capitol v. Thomas, resulting in an absurd verdict of $222,000 for infringement of 24 99-cent song files.
Yesterday’s decision by the US Court of Appeals for the Second Circuit, in Cartoon Network v. CSC Holdings, was most heartening, as all of the content cartel’s requests for the Court to disregard the plain meaning of the statute were rejected.
As is today’s report from Wired.com, that Judge Davis has indicated he is likely not to make the same mistake again. I enjoyed this passage, as it showed that the RIAA’s argument is that the Court should disregard the statute, and that the Judge is not going to do it this time around:
The judge implied that the Copyright Act appears to demand a transfer of a copyright to be a violation of the act. He said Congress didn’t support Verrilli’s position that proof of downloading by others from Thomas’ share folder was implied and not necessary.
“Why didn’t Congress do that?” the judge asked.
(The Copyright Act gives a rights holder the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”)
“There is nothing in that language that the plaintiff must demonstrate a transfer,” Verrilli said.
I am glad to see the law being applied in a conservative and rational manner, and I am glad to see the content owners’ unprincipled attempts to rewrite the law being rejected.
