Is 'Making Available' Copyright Infringement? ~ ALERT for personal computer owners....

Hollywood Reporter ^ | January 22, 2007 | Ray Beckerman

[Ernest_at_the_Beach]

Is 'Making Available' Copyright Infringement?
January 22, 2007

By Ray Beckerman

In 2003, the Recording Industry Association of America began a massive litigation campaign on behalf of the four major record companies against end users of peer-to-peer file-sharing programs, alleging widespread infringement of their sound recording copyrights. Somewhere in the neighborhood of 20,000-25,000 suits have been brought to date, with hundreds of new complaints filed monthly.

While at first blush this battle might appear to be a simple fight between record companies and some alleged music file-sharers, it is actually much more significant because the litigation campaign rests upon a legal argument about the Copyright Act that, if accepted, would represent a major expansion of the present boundaries of U.S. copyright law. This theory could have an enormous impact on the Internet as we know it.

The argument is that even if a defendant has never copied or distributed a file illegally, the fact that he or she possesses a computer with a shared-files folder on it that contains copyrighted files "made available" over an Internet connection, this in and of itself constitutes infringement of the "distribution" rights of the sound recording copyright holder under Section 106(3) of the Copyright Act.

A motion to dismiss in the case, Elektra v. Barker, 05 CV 7340, scheduled to be argued Jan. 26 in the Southern District of New York, might represent either the death knell of this theory or the enthronement of it as a binding rule of law.

RIAA Research Behind Claims
The roots of the "making available" issue lie not in the RIAA lawyers' draftsmanship skills but in the limited investigation upon which the lawsuits are predicated. The RIAA's research begins and ends with its investigator, Tom Mizzone, who works for "antipiracy" company MediaSentry. Armed with proprietary software, Mizzone uses a pretextual P2P file-sharing account on Kazaa, Gnutella, iMesh, LimeWire and other P2P software providers to locate shared-file folders that contain recordings whose copyrights are owned by the Big Four.

Mizzone takes a screenshot, downloads a few of the songs and, through another proprietary process, determines the dynamic IP address assigned to the screenshot. Then the RIAA, armed with a court order, goes to the Internet service provider to get the name and address of the owner of the Internet-access account to which the dynamic IP address had been assigned at the time the screenshot was taken.

The RIAA then closes its investigation and simply sues the owner of the account identified by the ISP.

In its complaints, which are virtually identical in all 20,000-plus cases, it alleges, in conclusory terms, that the defendant is using an "online digital distribution system" to "download, distribute and/or make available for distribution" plaintiffs' recordings.

Since it does not know of any downloads or distributions, the RIAA can allege none except in conclusory terms. The one thing plaintiffs can allege with specificity is, in essence, "Here is a list of songs that someone with your Internet account was making available at a certain time and date."

The Players, the Arguments
The defendant in Barker is a Bronx nursing student. She moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), arguing chiefly that the complaint failed with respect to "downloading" and "distributing" because it does not allege any specific acts of downloading or distributing. (The motion cites Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y. 2000); DiMaggio v. International Sports Ltd., 1998 U.S. Dist. LEXIS 13468 (S.D.N.Y. 1998); Brought to Life Music, Inc. v. MCA Records, Inc., 2003 U.S. Dist. LEXIS 1967 (S.D.N.Y. 2003); Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic, 1999 U.S. Dist. LEXIS 15837(S.D.N.Y. 1999); and Stampone v. Stahl, 2005 WL 1694073 (D.N.J. 2005).)

In addition, the motion argues that merely "making available," without actual dissemination, is not a copyright infringement. (Barker cites Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. 2002); National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 434 (8th Cir. 1993) (citing 2 Nimmer on Copyright § 8.11[A], at 8-124); and In re Napster, Inc., 377 F.Supp.2d 796, 802 (N.D.Cal. 2005).)

The RIAA, in opposition, argues that "making available" would indeed constitute a violation of plaintiffs' right to "distribute" granted by 17 USC 106(3), relying chiefly upon the decision of the U.S. 4th Circuit Court of Appeals in Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (1997), in which a chain of libraries had distributed a number of concededly unauthorized copies of the subject work to its various branches and included them in card catalogs, but kept no circulation records, thus making it impossible for plaintiff to prove actual dissemination.

In reply, Barker distinguished Hotaling as being limited to its unusual set of facts.

Upon learning of the RIAA's argument that merely "making available" is in and of itself a copyright infringement, several organizations sought, and were granted, leave to file amicus curiae briefs in support of Barker's motion.

The Computer & Communications Industry Assn. and U.S. Internet Industry Assn. filed a joint amicus brief arguing that the "distribution" right set forth in the Copyright Act is a specific, defined term and that the RIAA's proposed expansion would, if adopted by the court, "sweep into the reach of copyright law many activities not now covered by copyright law," making the boundaries of the distribution right "indeterminate and unpredictable, creating chilling effects on members of amici and virtually every other participant on the Internet."

As an example, they argued: "Companies routinely include in their Web pages hyperlinks that enable persons to navigate easily to other sites throughout the Web by use of browser software. Indeed, the Web is a collection of hyperlinks. Even though the use of hyperlinks makes content located elsewhere available to a Web user, it does not constitute a distribution of that content under section 106(3)."

The Electronic Frontier Foundation also submitted an amicus brief in support of Barker's motion, emphasizing an entirely different argument. EFF essentially assumed, for purposes of argument, that the complaint had adequately alleged Internet transmissions, and it argued that the "distribution right," as opposed to other rights under the Copyright Act, can never be implicated by mere ephemeral transmissions but relates solely to the dissemination of physical, tangible, material "copies" and "phonorecords." Picking up on the question raised by the U.S. 2nd Circuit Court of Appeals in Agee v. Paramount, 59 F.3d 317 (2d Cir. 1995) -- whether "disseminations must always be in physical form to constitute 'distributions' " -- EFF argued in the affirmative based primarily on the language of 17 U.S.C. 106(3), its legislative history and the reasoning of Agee.

The MPAA came into the picture with an amicus brief supporting the RIAA.

And the U.S. Department of Justice weighed in, submitting a "Statement of Interest," in which it confined itself to rebutting EFF's argument. DOJ specifically disclaimed having any "interest" in the RIAA's "making available" argument, pointing out that it had never prosecuted anyone under the copyright laws for "making available."

Barker filed additional papers, one responding to the EFF's amicus brief, one responding to the DOJ's statement of interest, each pointing out that it was not necessary to reach the "ephemeral transmission vs. tangible physical object" issue because the RIAA had not pleaded any instances even of "ephemeral transmissions" with sufficient specificity to satisfy normal copyright infringement pleading standards.

Ready for Argument
The motion is fully briefed and is scheduled for oral argument this week before Judge Kenneth Karas.

I am not aware of any other cases attacking the sufficiency of the RIAA's complaint in which all of the principally affected industries and interests have weighed in as amicus curiae. It is indeed unusual for a case at the district court level to receive this level of attention, thus accentuating the importance of the issues at stake.

While Elektra v. Barker would appear to be just a procedural pleading standards case, it is more than that because the RIAA does not actually possess more information to allege, so there is no possibility of curing the problem by repleading. Nor has it asked for leave to replead if defendant's motion is granted.

Since the RIAA uses a single, standard complaint in all of its litigations, the decision could affect huge numbers of litigants. As the CCIA and USIIA persuasively argue, there is almost no scenario under which the court's holding would not have far-reaching consequence to the technology and Internet world, regardless of which way the motion is decided.

And if the RIAA loses and the case is dismissed, it will no doubt appeal. The issues -- including possibly a revisiting of Agee in the context of Internet transmissions -- would then come before the 2nd Circuit, or possibly up to the U.S. Supreme Court.

About the author: Ray Beckerman is a member of Vandenberg & Feliu in New York and the author of the blog The Recording Industry vs. The People, which tracks file-sharing litigation. He is one of the attorneys representing defendant Tenise Barker in Elektra v. Barker.

[excalibur1701]

Another reason I don't buy any CD's. Talk about biting the hand that feeds you.

[sbMKE]

It's generally understood that you DON'T use the library's copier to duplicate an entire book.

I think that's only a matter of simple economics and ROI. 250 pages at 15 cents per is likely much more costly than just buying the book. General understanding doesn't have anything to do with it -- the option is available and I (er, I know a guy) who have done it.

[sbMKE]

Where is the legality in backdooring into people's harddrives and pulling files -- it's not illegal when the RIAA does it? How again is this different than someone walking in my front door and burning off a copy of files from my pc uninvited?

[PissAndVinegar]

"While the P2P programs are running the files in the P2P's shared folders are available for distribution through the internet."

I'm assuming you are a nonuser because this is the second not-quite-right statement you've made on P2P.

Different apps handle sharing differently but the better ones can be configured on how it shares so in general:

• You can specify different 'Download to' and 'Share from' folders minimizing the data you share.
  
  
• You can specify the number of outgoing connections, including 0 (no one gets nuthin!)
  
  
• You can specify the max upload (sharing) speed - 0K per sec (again, no one gets nuthin!)
  
  
• You can black / white list connections (to only share with colleagues, to block out known Gov't/RIAA/MPAA/etc. IP addresses)
  

Please don't take my comments as 'calling you out' nor supporting software piracy/copyright infringement. I use it strictly for Linux distributions and legal game patches / demos. Many legit companies use P2P distributed networks to distribute their software because it save them the money of hosting it themselves

[darkwing104]

Many legit companies use P2P distributed networks to distribute their software because it save them the money of hosting it themselves.

Depends on the P2P software you use...Some do and some don't. You have to watch out on which P2P program you are talking about or using, Some contain adware and others are Spyware. I'll bet RIAA have something to do with the spyware varients.

Off hand, I know Red Hat uses it and that is how World of Warcraft distribute updates.

[Ernest_at_the_Beach]

Highlighting this:

***********************************************

RIAA Research Behind Claims
The roots of the "making available" issue lie not in the RIAA lawyers' draftsmanship skills but in the limited investigation upon which the lawsuits are predicated.

The RIAA's research begins and ends with its investigator, Tom Mizzone, who works for "antipiracy" company MediaSentry.

Armed with proprietary software, Mizzone uses a pretextual P2P file-sharing account on Kazaa, Gnutella, iMesh, LimeWire and other P2P software providers to locate shared-file folders that contain recordings whose copyrights are owned by the Big Four.

Mizzone takes a screenshot, downloads a few of the songs and, through another proprietary process, determines the dynamic IP address assigned to the screenshot.

Then the RIAA, armed with a court order, goes to the Internet service provider to get the name and address of the owner of the Internet-access account to which the dynamic IP address had been assigned at the time the screenshot was taken.

The RIAA then closes its investigation and simply sues the owner of the account identified by the ISP.

[Ernest_at_the_Beach]

See post #26 as to how the RIAA is investigating....

[Ernest_at_the_Beach]

Info :

MediaSentry

*********************

MediaSentry is a company that provides services to the music recording, motion picture, television, and software industries for locating and identifying IP addresses who are engaged in the use of peer-to-peer (P2P) networks to share material in violation of copyright. The company provides several services for this purpose, such as monitoring popular forums for copyright infringement, aid in litigation, and early leak detection. MediaSentry also made use of illegitimate P2P clients and servers. MediaSentry is used by the RIAA to identify individuals to sue for alleged copyright infringement.

[Ernest_at_the_Beach]

In Foundation v. UPC Nederland^[1], MediaSentry's investigative methods were held by an appeals court in the Netherlands to be unreliable. ^[2]Foundation v. UPC Nederland, July 13, 2006, Decision of Court of Appeal of Amsterdam. ^[3] The appeals court affirmed the holding of the District Court of Utrecht ^[4]that the MediaSentry investigation by Tom Mizzone was an insufficiently reliable basis to warrant directing Dutch ISP's to turn over confidential customer information to the RIAA's Netherlands counterpart: "neither the affidavits nor the cross-examination of Mr. Millin pro[...]vide clear and comprehensive evidence as to how the pseudonyms of the KaAaA or iMesh users were linked to the IP addresses identified by MediaSentry. No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service." The appeals court agreed with the independent experts report of Prof. Henk Sips and Dr. Johan Pouwelse of the Parallel and Distributed Systems research group at Delft University of Technology^[5] that MediaSentry's Tom Mizzone had not taken the "necessary precautions" in conducting his 'investigation' and that his investigation was 'limited' and 'simplistic', failing to "resolve... relevant technical problems such as superpeer hopping, NAT translation, and firewall relaying....[failing to implement] "actual complete file transfer....simply [taking] filenames at face value and ...[failing to make] any correction for pollution on Kazaa [despite] [p]ollution levels [on Kazaa which] can be as high as 90% for some files....[not being aware of] the limitations of Kazaa in file searching. Not many of the 2,499,121 users online would be able to see the mentioned 736 files. Reliable global searching in P2P file sharing networks is still an unsolved problem. Only users connected to the same Kazaa Superpeer are guaranteed to see these files when Kazaa operates properly (roughly 100 to 150 users as measured by Prof. Keith Ross)....[failing to take] computer hygiene precautions ..... The collected evidence of the spacemansam@KaZaA alias [query] contains multi-peer downloading contamination. Therefore, it is difficult to establish the contribution of the various IP-addresses. It is possible that some IP-addresses contributed 0 Bytes to an actual download, thus there was only involvement and no actual contribution". The Netherlands litigation came to the fore over a year later^[6] in UMG v. Lindor^[7], a United States case, in which the RIAA is trying to prevent Ms. Lindor's attorneys from seeing the MediaSentry agreements spelling out the "instructions", "parameters", and "processes" of Mr. Mizzone's investigation, and Ms. Lindor's attorneys argue that the agreements are necessary for a proper deposition and cross-examination of Mr. Mizzone. ^[8]

Another service MediaSentry provides, according to the testimony of its president, is the placement of deliberately corrupted song files into circulation in order to discourage unauthorized copying. ^[9]

Although the RIAA states that it entered into the agreements with MediaSentry "on behalf of" its members^[10], it appears that only the 'big four' record companies take advantage of MediaSentry services, as all of the known lawsuits have been brought only by those four companies and their affiliates. The RIAA seeks to keep its agreements with MediaSentry secret.^[11] Its arguments for "privilege" have been challenged by defendant Marie Lindor.^[12]. The motion was fully briefed and argued on November 30, 2006, and as of this writing the parties are awaiting the Court's decision.

In one of the RIAA cases in October 2005, Atlantic v. Andersen, a major record label group was counter-sued for electronic trespass, relating to activities carried out by MediaSentry. The company is suspected of invading personal home computers and harvesting personal information. A French court has ruled that the type of "pretext" search performed by MediaSentry is unlawful under the laws of the European Union.^[13]

On June 13, 2005, Mediasentry was acquired by SafeNet.

[edit]

[darkwing104]

Another service MediaSentry provides, according to the testimony of its president, is the placement of deliberately corrupted song files into circulation in order to discourage unauthorized copying.

perhaps containing a virus?

I don't download music but I see a problem concerning privacy and the possible abuse of legal owners using their own property. It's almost bordering on privacy invasion.

[AppyPappy]

If you know it is there, you are liable.

[RobRoy]

>>If you know it is there, you are liable.<<

It looks like we are gonna find out. Based on what I read in post 29 though, this looks to get very, VERY interesting.

[unixfox]

This can't be true, during the CES, Bill Gates was saying that every home would soon need a server to store movies, music, photos, and other documents to SHARE with others.

I guess RIAA needs to speak with Bill.

[Arthalion]

That tells me that anyone with a wireless router have better secure it. ASAP before the RIAA comes knocking on your door.

Exactly the opposite. To sue you successfully, the RIAA has to prove that YOU, and not just your connection, were responsible for the downloading. There have been many cases now where RIAA suits have been dropped because the people used wireless routers and the RIAA had no way to confirm who the actual owner of the downloading computer was.

You can expect them to subpoena your computer to do a forensic analysis if you try that argument (and DON'T just try to delete the files or reformat the computer...some lady did that and ended up in jail for violating the subpoena), but if your computer is genuinely clean you have nothing to worry about.

You can also just do what I do. Don't download music from the P2P sites. It may save you money, but it's not worth the hassle.

[Ernest_at_the_Beach]

Vista will save us..../sarcasm

[darkwing104]

You can also just do what I do. Don't download music from the P2P sites. It may save you money, but it's not worth the hassle.

I don't, my computers are legit. I sleep better at night.

[BlueNgold]

I find it astounding the number of people who defend their 'right' to copy and distribute music, movies, games etc.

What is so hard about the basic concept of paying for a product that was produced and distributed in a legal format?

I am honestly and truly amazed by the 'righteous indignation' of people against the RIAA and others who seek to protect their legal copyrights.

[RobRoy]

Well, they had better hurry up with my subpoena, because I'm about to replace both of my desktops. 'Sides, I never keep more than 10 or 20 songs in my "shared" folder.

[RobRoy]

I haven't bought a CD since late 1997. I have bought LOTS of music DVD's though.

In the late 60's and early 70's, I recorded songs off the radio. Then I moved on to recording my albums for use in the car. Now I get my music off P2P.

'Course, I have never downloaded something less than 10 years old, other than for curiosities sake.

Actually purchasing pre-recorded music is SOOOOOO 20th century. The model is dead.

Pre-recorded music is a comodity, something to get free with a happy meal, etc.

Heck, the only reason I even download music is to learn the songs for my band. But then, downloading is completely legal.

[BlueNgold]

I hope you're joking...