Hardrock69
01-27-2006, 01:43 PM
"Making available" is copyright infringement, says RIAA
1/26/2006 2:11:54 PM, by Anders Bylund
Elektra v. Barker is not the latest issue of Daredevil: The Man Without Fear!, but rather one of the RIAA's ongoing court proceedings, wherein the record companies seek damages from a Denise Barker. The case started out as a John Doe, until Verizon―faced with a subpoena, not a court order―released the name of the customer associated with an IP address through which the indefatiguable sleuths at Elektra's disposal had found 611 songs shared, some of which surely violated their copyright.
The defendant filed a motion to dismiss the case on the grounds of a lack of evidence that any songs were actually shared; the fact that the RIAA invesigation turned up a list of available files is not sufficient to prove that any files changed virtual hands. On Tuesday, the RIAA lawyer team filed opposition papers against the motion for dismissal, and that's where the real fun begins. You see, according to the RIAA (PDF), copyright is breached the moment content is made available through any medium, and there's no need to prove anything happened beyond the listing:
The Ninth Circuit in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) also found that "making available" constituted copyright infringement. In Napster, the court evaluated the situation where an individual made copyrighted sound recordings available for distribution on a peer-to-peer program, but did not submit evidence of actual distribution. The court held that "Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights." Id. at 1014. This same analysis was also applied in Matlow v. Solomon, No. Civ. 04-6109, 2005 WL 309976 (D. Or. Feb. 7, 2005). In Matlow, the defendant "offered for sale unauthorized copies of [plaintiff's] photographs by listing them on the eBay internet auction web site." Id. at *1. Without proof of actual distribution, the court held that "it appears undisputed that defendant violated the copyright act." Id.
The cited case law appears to give the argument solid support, but only until you do your homework. Take, for example, the A&M Records, Inc. v. Napster, Inc. case they refer to as a precedent for deeming a list of downloadable files equal to actual distribution. After Napster went bankrupt, the case changed its name to UMG Recordings Inc. et. al. v. Bertelsmann AG Inc. et. al. and continued to the next level of the judicial system, where US District Judge Marilyn Patel dismissed the case (PDF):
... it is apparent that plaintiffs' "indexing" theory falls well short of meeting the requirements for establishing direct copyright infringement. Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that workfor the purpose of its further distribution or public performance, plaintiffs' theory is premised on the assumption that any offer to distribute a copyrighted work violates section 106(3). This is not sufficient to satisfy plaintiffs' burden of proving that Napster or its users directly infringed their copyrighted musical compositions and sound recordings, as they must do if they are to hold defendants secondarily liable for that infringement. Accordingly, the court holds that defendants are entitled to summary judgement on this issue.
The executive summary: your copyright is only breached if you actually sell, lend out, or give away unauthorized copies of protected content, and you need to prove that it happened, rather than point at a list of downloadable files and guess that it did. Maybe the RIAA lawyers missed that stage of their precious support case because of the name change; maybe they chose to ignore it in the hopes that District Judge Kenneth Karas and his staff won't catch on. Whatever the case, the RIAA seems to have moved into full desperation mode, crying for stronger DRM everywhere, bullying teenagers into perjury, and turning the concept of "innocent until proven guilty" on its head. All the while, they spin record dollar sales as declining CD shipments, and blame it all on piracy.
As a direct result of piracy over the P2P networks, Plaintiffs have sustained and continue to sustain devastating financial losses. [...] Plaintiffs' losses from online music piracy have resulted in layoffs of thousands of employees in the music industry.
The last time the RIAA released actual sales data was for the the first half of 2005, and that release bemoaned a 6.5 percent drop in physical CD shipments, clearly due to piracy. Fast-forward a bit to the full-year stats calculated from SoundScan data, and that 6.5 percent drop is covered by the 7.3 percent market share of legal downloads. The real issue here is that the recording industry is losing the tight control they once had over where and how you could buy music, and they don't want to lose the double-dipping revenue streams they currently enjoy.
http://arstechnica.com/news.ars/post/20060126-6057.html
HR69 note: Regarding that item about the claims of cd shipments dropping by 6.5% for the first half of 2005.
What they failed to mention (purposely) was that sales of physical CDs for the same time period were UP.
The Major labels had merely reduced the number of CDs actually shipped as a means of cutting costs by reducing returns of unsold product.
As usual, they are crying wolf, just as the movie studios were doing back in the 80s with VHS videotape.
They are not really losing money.
But they sure want everyone to believe they are.
1/26/2006 2:11:54 PM, by Anders Bylund
Elektra v. Barker is not the latest issue of Daredevil: The Man Without Fear!, but rather one of the RIAA's ongoing court proceedings, wherein the record companies seek damages from a Denise Barker. The case started out as a John Doe, until Verizon―faced with a subpoena, not a court order―released the name of the customer associated with an IP address through which the indefatiguable sleuths at Elektra's disposal had found 611 songs shared, some of which surely violated their copyright.
The defendant filed a motion to dismiss the case on the grounds of a lack of evidence that any songs were actually shared; the fact that the RIAA invesigation turned up a list of available files is not sufficient to prove that any files changed virtual hands. On Tuesday, the RIAA lawyer team filed opposition papers against the motion for dismissal, and that's where the real fun begins. You see, according to the RIAA (PDF), copyright is breached the moment content is made available through any medium, and there's no need to prove anything happened beyond the listing:
The Ninth Circuit in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) also found that "making available" constituted copyright infringement. In Napster, the court evaluated the situation where an individual made copyrighted sound recordings available for distribution on a peer-to-peer program, but did not submit evidence of actual distribution. The court held that "Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights." Id. at 1014. This same analysis was also applied in Matlow v. Solomon, No. Civ. 04-6109, 2005 WL 309976 (D. Or. Feb. 7, 2005). In Matlow, the defendant "offered for sale unauthorized copies of [plaintiff's] photographs by listing them on the eBay internet auction web site." Id. at *1. Without proof of actual distribution, the court held that "it appears undisputed that defendant violated the copyright act." Id.
The cited case law appears to give the argument solid support, but only until you do your homework. Take, for example, the A&M Records, Inc. v. Napster, Inc. case they refer to as a precedent for deeming a list of downloadable files equal to actual distribution. After Napster went bankrupt, the case changed its name to UMG Recordings Inc. et. al. v. Bertelsmann AG Inc. et. al. and continued to the next level of the judicial system, where US District Judge Marilyn Patel dismissed the case (PDF):
... it is apparent that plaintiffs' "indexing" theory falls well short of meeting the requirements for establishing direct copyright infringement. Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that workfor the purpose of its further distribution or public performance, plaintiffs' theory is premised on the assumption that any offer to distribute a copyrighted work violates section 106(3). This is not sufficient to satisfy plaintiffs' burden of proving that Napster or its users directly infringed their copyrighted musical compositions and sound recordings, as they must do if they are to hold defendants secondarily liable for that infringement. Accordingly, the court holds that defendants are entitled to summary judgement on this issue.
The executive summary: your copyright is only breached if you actually sell, lend out, or give away unauthorized copies of protected content, and you need to prove that it happened, rather than point at a list of downloadable files and guess that it did. Maybe the RIAA lawyers missed that stage of their precious support case because of the name change; maybe they chose to ignore it in the hopes that District Judge Kenneth Karas and his staff won't catch on. Whatever the case, the RIAA seems to have moved into full desperation mode, crying for stronger DRM everywhere, bullying teenagers into perjury, and turning the concept of "innocent until proven guilty" on its head. All the while, they spin record dollar sales as declining CD shipments, and blame it all on piracy.
As a direct result of piracy over the P2P networks, Plaintiffs have sustained and continue to sustain devastating financial losses. [...] Plaintiffs' losses from online music piracy have resulted in layoffs of thousands of employees in the music industry.
The last time the RIAA released actual sales data was for the the first half of 2005, and that release bemoaned a 6.5 percent drop in physical CD shipments, clearly due to piracy. Fast-forward a bit to the full-year stats calculated from SoundScan data, and that 6.5 percent drop is covered by the 7.3 percent market share of legal downloads. The real issue here is that the recording industry is losing the tight control they once had over where and how you could buy music, and they don't want to lose the double-dipping revenue streams they currently enjoy.
http://arstechnica.com/news.ars/post/20060126-6057.html
HR69 note: Regarding that item about the claims of cd shipments dropping by 6.5% for the first half of 2005.
What they failed to mention (purposely) was that sales of physical CDs for the same time period were UP.
The Major labels had merely reduced the number of CDs actually shipped as a means of cutting costs by reducing returns of unsold product.
As usual, they are crying wolf, just as the movie studios were doing back in the 80s with VHS videotape.
They are not really losing money.
But they sure want everyone to believe they are.