updated 03:25 pm EDT, Tue August 21, 2007
Challenge to RIAA suits
An upcoming lawsuit, scheduled for hearing in September, may already be threatening the basis for the RIAA's case against illegal file sharing. Ray Beckerman, the defendant attorney in Warner v. Cassin, has filed to dismiss the lawsuit on the grounds that the RIAA can no longer use its "making available" argument. The group's view has been that simply by making music visible in peer-to-peer (P2P) sharing programs, a person is guilty of "continuous" copyright infringement, as files can then be downloaded by virtually anyone.
But due to the nature of P2P software, it is essentially impossible to determine whether someone other than the RIAA's investigative arm -- SafeNet -- has downloaded the music, constituting a specific, provable infringement. "The complaint," Beckerman's filing reads, "fails to set forth...any instance or example of 'downloading' a recording; any instance or example of 'distributing' a recording; any instance or example of 'making [a recording] available';...or what law would support a claim for 'making [a recording] available.'"
The attorney also contests that if "making available" is ruled identical to distribution, it could set an unintended precedent: "almost all participants in the Internet," he says, "would become vulnerable to accusations that they 'make available' a variety of content, including copyrighted materials, to users." Even hyperlinks could be construed as giving access to copyrighted material.
The subject of the RIAA's theory has come up in other cases such as Elektra v. Perez and Elektra v. Barker, but the latter has yet to be ruled on, and with the former the topic only arose when Perez wanted dismissal with prejudice. Cassin's case may be the first in which the subject of "making available" prevents the suit from reaching court. [via Ars Technica]