EFF Cites 9th Circuit Decision to Fight RIAA Infringement Theory

Making-available formed the basis of the Phoenix court’s original summary judgment for the RIAA, vacated when Jeffrey Howell, representing himself, provided legal analyses critical of the theory (WID Oct 5 p3). The theory was upheld in an uncontested case in the U.S. District Court in Eugene, Ore.,, and the Justice Department consistently has supported the RIAA position. But judges asked by defendants in contested cases to evaluate the theory largely have declined to rule (WID Aug 27 p2). The U.S. District Court in White Plains, N.Y., several times has postponed oral argument on the theory in Warner v. Cassin, most recently until Feb. 15. The Phoenix court will hear oral arguments in Howell Jan. 24.

EFF cited the 9th Circuit ruling in Perfect 10 v. Google, which concerned Google’s display of sexual images in search results (WID May 17 p1), as evidence that making- available is bunk. There the court, which has jurisdiction over the Arizona federal district, said “distribution requires an ‘actual dissemination'” of a copy under Section 106 of the Copyright Act, EFF related. Google linked to full-size images from thumbnail images the search engine made, so the court held it wasn’t responsible for distributing full-sized images. The 9th Circuit sent back to the district court the question of whether Google was contributorily liable for linking.

The RIAA cited Napster to buttress its view that uploading an “index” of file names counts as infringement, but that’s a misreading of the 9th Circuit decision, EFF said. No one in Napster disputed “the existence of an avalanche of actual disseminations [by users], making it unnecessary [for the court] to express any view” on whether making available files is infringement itself, the group said. EFF also found support in a letter by Register of Copyrights Marybeth Peters, considered a supporter of the RIAA’s view, to Congress on the interpretation of section 106. “Where the work is uploaded” without authorization, that counts as infringement, she had said. EFF couldn’t explain away a 4th U.S. Circuit Court of Appeals ruling that a library placing a book in its “catalog or index system” without authorization had committed infringement, regardless of whether anyone checked out the book. That decision “simply cannot be squared” with section 106 and copyright authorities have criticized it, EFF said.

The royalty distinction between distribution and public performance is at risk if the RIAA’s view is adopted, EFF said. The group cited the labels’ suit against XM concerning its portable satellite radio players, which the labels said could alert users to record specific tracks before they came on. Broadcasters generally use compulsory or negotiated licenses for public performance that may be called into question as insufficient if making-available is validated, EFF said. Internet search functions generally have been governed by secondary liability where copyrighted works are concerned, but the RIAA wants to change the legal standard to direct infringement, EFF said.

The labels have no evidence that anyone other than MediaSentry, the RIAA’s investigator, downloaded files from Howell through the Kazaa client, EFF said. The RIAA had argued that Howell’s deletion of Kazaa counted as spoliation, but the labels admitted that Kazaa would have yielded scant evidence, since the software creates no log file of transferred content by default, the group said. Considering their “nearly limitless resources” to investigate P2P sharing, the labels can’t complain that they face “evidentiary challenges” in proving infringement, EFF said. - - Greg Piper