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June 3, 2005
Offering != Distribution
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Judge Marilyn Patel issued a ruling (PDF) Wednesday that settles an important question in the ongoing Napster (yes, Napster) case -- whether under the law, simply offering copyrighted material to others (say, by listing it in an index) means you're distributing it.
The record label lawyers, as Ernie Miller so delicately puts it, "were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit." They have therefore been working hard at making the Artists' Rights and Theft Prevention Act of 2005 (ART Act) work for them, hoping Judge Patel would adopt a new, broader standard for the right of distribution based on one of its provisions. If Judge Patel found Napster liable for direct infringement on the theory of making-available-as-distributing, the labels could press forward against Napster's investors on that basis. No such luck.
Rather than requiring proof of the actual dissemination of a copyrighted work or an offer to distribute that work for 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 judgment on this issue.
In other words, copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing. The simple act of offering isn't enough.
Accordingly, the court holds that defendants are entitled to summary judgment on this issue.
In the context of the case, this is a minor victory -- Judge Patel did not dismiss the other theories for direct infringement, so the case will continue against Napster's investors on those grounds. But it does clarify the law, providing a safeguard against the over-reach that the ART Act threatened.
For a much more detailed look at the ruling, check out Ernie's latest post, Judge Patel Dismisses One Direct Infringement Theory, But Napster Investment Case Continues.
(Cross-posted @ Deep Links.)
Post script: It looks like Alan and I pressed "publish" for posts on this issue at roughly the same time: here's his take.
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1. Right desicion for the wrong reason on June 6, 2005 9:42 AM writes...
The Judge Patel decision that the mere indexing is not infringement was right, but for the wrong reason. Here is the right primary reason.
If the judge had found infringement for having a public list of songs, then the juge faced the ridiculos and daunting proposition of awarding unheard of damages to plaintiffs.
Because, per the Copyright Act and Copyright Damages Improvement Act, the minimum damages that can be awarded are the greater of the following two: actual profits or are statutory damages, that are a minimum of $700 and a maximum of $150,000.
Assuming that a p2p index had a million songs, the damages sentence than had to be in the range of $700 million to $150 billion.
Furthermore, if a teenager is found to have copied a DVD with 10,000 mp3 songs, and is found to have infringed the songs then a mandatory sentence in the range of $7 million to $1.5 billion are possible, depending on which side of the bed the judge or the jury got up. When the next upgrade to DVD technology arrives, the numbers are 5 times greater. Of couse, copying 5 DVDs would also increase the damages accordingly.
The absurd damages arise because the Copyright Act is a "dumb law" where all the possible results of it were never seriously considered by the lawmakers not he lobbyist who shove the laws to the lawmajesrs, even when new technology made it clear that the damages part of the law made no sense under certain, surely common to be, circumstances.
Judge Patel should have declared the law unconstitutional because it had built absurd punishments, with a potential of wiping off the face of the earth anyone, a kid or his parents or a business who makes the innocent mistake of copying a 10,000 song dvd or a 50 movie dvd.
That would have been the valiant thing to do.
Rafael Venegas
A victim of absued infringement punishments.
http://www.gvenegas
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