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| SUBJECT | Subject: [NYLXS - HANGOUT] Turning up the heat on information disemination
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The Iconoclast Subscribe to The Iconoclast October 8, 2007 10:15 PM PDT
Will appeal succeed in RIAA's $222,000 'making available' case?
Posted by Declan McCullagh
The Minnesota woman who was slapped with a $222,000 penalty for "making
available" songs on the Kazaa network is appealing her loss.
But can she actually win against the Recording Industry Association
of America?
There's probably a 50-50 chance. On one hand, the RIAA has won some minor
victories in the last few years with its "making available" arguments
to expand copyright law beyond what it actually seems to say. Now that
there's finally going to be some serious public and judicial scrutiny,
however, the odds are closer to even.
(If the RIAA wins, by the way, the precedent would create some real
dangers for innocent users. But more on this later.)
[#1] What's important to remember here is that the RIAA's victory
rests in large part on, as I wrote last week, the judge's decision
that the record labels need only prove that Thomas made copyrighted
music "available" on the Kazaa network. That means leaving the songs
in a publicly accessible directory where they might possibly have been
downloaded. Thomas confirmed earlier Monday that her appeal to the 8th
Circuit will center on that point.
To understand how this will play out, let's start with the plain text
of the relevant part of federal law. It says:
17 USC 106: The owner of copyright under this title has the exclusive
rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) 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
Illicit distribution of copyrighted materials over Kazaa involves
paragraphs (1) and (3). Those paragraphs restrict the unauthorized
"reproduction" or "distribution" of music--which sure doesn't seem to
cover Thomas leaving songs in her shared directory if they were never
actually downloaded.
So how can the RIAA get away with this? This is where things get
murky. The definition of "publication," which the U.S. Supreme Court
says is the same as distribution, says: "Offering to distribute copies or
phonorecords to a group of persons for purposes of further distribution,
public performance, or public display, constitutes publication."
[#2] Some courts have interpreted that to mean proof of actual copying
is necessary; others haven't. Take a 1997 case involving the Church of
Jesus Christ of Latter-Day Saints, sued by genealogical researchers who
sold their copyrighted work on microfiche. Instead of buying multiple
copies, the Mormons bought only one, made copies, and sent the duplicates
to their branch libraries.
The copyright-holding genealogists took the position that the RIAA does
today. They claimed that merely proving the copyrighted work was available
was good enough. In response, the church argued that the researchers
needed to show a library patron actually had read the pirated microfiche.
The RIAA's argument won. The 4th Circuit concluded by a 2-1 margin:
We agree with the (researchers). When a public library adds a work to
its collection, lists the work in its index or catalog system, and makes
the work available to the borrowing or browsing public, it has completed
all the steps necessary for distribution to the public. At that point,
members of the public can visit the library and use the work. Were this
not to be considered distribution within the meaning of Section 106(3),
a copyright holder would be prejudiced by a library that does not keep
records of public use, and the library would unjustly profit by its
own omission.
Because a split decision in a different federal circuit a decade ago in
an unrelated case may not be entirely persuasive, the RIAA has invoked
other arguments as well. And they've had some preliminary success.
Among them: 1. The WIPO copyright treaty, which the United States has
ratified, covers "the making available to the public" of copyrighted
works. 2. Marybeth Peters of the U.S. Copyright Office says that
making a file "available for other users of a peer to peer network to
download...constitutes an infringement of the exclusive distribution
right, as well of the reproduction right." 3. Having child pornography
in a Kazaa shared folder is, at least in the 10th Circuit, good enough
to support a conviction in a criminal case. 4. The 9th Circuit believes
that copyright law was infringed when peer-to-peer users "make their
collections available to all other" users.
[#3] Those are strong arguments. But there's another side to the story
as well (which is why I believe that Thomas has a 50-50 chance): WIPO is
not binding by itself; Marybeth Peters' opinions aren't as important as
what the law actually says; a civil dispute is different from a criminal
prosecution; and so on.
Not all judges in the RIAA cases have agreed with the music industry's
lawyers. In a preliminary ruling in Interscope Records v. Duty, a judge
said last year: "To be clear, we do not conclude that the mere presence
of copyrighted sound recordings in Duty's share file constitutes copyright
infringement. We have an incomplete understanding of the Kazaa technology
at this stage..." At least two other courts have followed that line
of thinking.
In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that:
"At trial, plaintiffs will have the burden of proving by a preponderance
of the evidence that defendant did indeed infringe plaintiff's copyrights
by convincing the fact-finder, based on the evidence plaintiffs have
gathered, that defendant actually shared sound files belonging to
plaintiffs." (Emphasis added.)
Most judges, though, haven't spent too much time puzzling through the
implications of "making available." One exception is U.S. District
Judge Kenneth Karas in Elektra v. Barker, who has heard arguments
from not just the RIAA but also the Electronic Frontier Foundation,
the American Association of Publishers, the Motion Picture Association
of America, the Computer and Communications Industry Association, and
the U.S. Department of Justice. The Justice Department, by the way,
sided with the RIAA. A decision from Judge Karas is expected at any time.
All those cases receive something of a boost from U.S. District Judge
Marilyn Hall Patel's 2005 ruling in an offshoot of the original Napster
litigation. Patel is no tech-neophyte; she presided over Napster, a
1990s-era encryption source code case, and the recent Americans with
Disabilities Act lawsuit over Target's Web site. She wrote:
The gravamen of the parties' dispute lies in whether the Copyright Act
requires proof of the actual dissemination of a copy or phonorecord in
order to establish the unlawful distribution of a copyrighted work...If
Congress wanted to make clear that the distribution right was broad
enough to encompass making a work available to the public without proof of
actual distribution, it was perfectly capable of doing so. Yet plaintiffs
have failed to identify anything in (the law's) legislative history,
much less the statute itself, to suggest that Congress even considered
the scope of civil liability for copyright infringement in enacting the
statute. Any attempt to infer legislative intent from such silence is
at best speculative.
[#4] I said at the beginning of this article that if the RIAA wins on
"making available," the precedent would create real dangers for innocent
users. That's because the awesome weapon of copyright law can be turned
on people who only mistakenly ran afoul of it.
The case of the Mormon church buying only one copy of the microfiche for
multiple libraries was pretty straightforward: the purpose of any library
is to distribute information, and intent to distribute can be assumed.
But computers are far slipperier than libraries (or, put another way,
we're all libraries now). If my mother accidentally shares her computer's
entire hard drive with the world by clicking the wrong button in an OS
X setup menu, is that "making available?" Should she be held liable for
$222,000 in damages, and lose her house, for accidentally making two
CDs of music available to the world?
If I don't upgrade to a newer version of my operating system even though I
know there's a security glitch that opens my hard drive to the Internet,
does that mean I'm "making available" my music collection? Do Internet
service providers "make available" access to Kazaa? Do search engines
"make available" links to infringing files?
"It's hard to distinguish having something in a Kazaa shared directory
versus having it on my shelf and not locking my door or having it on
a computer and not bothering with a firewall so the college kids--who
I know full well live next door--can hop on and take it," says Jessica
Litman, who teaches copyright law at the University of Michigan and is
the author of Digital Copyright. "If the RIAA eventually wins on this one,
it would be a ruling I'd be willing to say is wrong," Litman added.
These are not all easy questions to answer, especially because intent
doesn't matter much in copyright law. It's what lawyers like to call a
strict liability offense--meaning that even accidental "making available"
can slap you with a $222,000 penalty. This might make sense for corporate
defendants, but it gets bizarre quickly when applied to hundreds of
millions of Internet users.
It's true that ditching the "making available" idea and making the RIAA
prove the songs were actually downloaded means its lawyers would have
to work harder. And it wouldn't solve all of these problems above. But
it would be a small step toward repairing some of the imbalances in
copyright law today.
Topics:intellectual property
Tags:RIAA, copyright infringement
Bookmark:Digg Del.icio.us Reddit
1 comments
Post a commentTalkBack
I hope her Appeal Is Successful.
starcannon
Oct 8, 2007, 11:55 PM PDT
Read more comments >
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About The Iconoclast
Declan McCullagh has covered politics, technology, and Washington,
D.C. for over a decade, which has turned him into an iconoclast and a
skeptic of anyone who says: "We oughta have a new federal law against
this."
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