January 4th, 2008
WashPo gets RIAA CD rip story wrong on Dec. 30; I got it right on Dec. 11
When I first became aware of that clueless December 30 Washington Post article in which Mark Fisher erroneously claimed the RIAA was maintaining that ripping CDs was illegal, wanna know what I thought to myself?
Well, h-e-l-l-o!!
Mark, if you had only read my post 19 days earlier, on December 11. I explained then what was actually being claimed.
I wrote in part:
The courts, too, have found that, even in the absence of proof that a copyrighted work has actually been fully transmitted to another, the section 106(3) distribution right is violated when a copyrighted work is made available for others on a peer-to-peer file sharing network. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (“Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights.”); BMG Music v. Gonzalez, 430 F.3d 888, 889 (7th Cir. 2005) (“[P]eople who post or download music files are primary infringers.”); Sony Pictures Home Entm’t, Inc. v. Lott, 471 F. Supp. 2d 716, 721-22 (N.D. Tex. 2007) (granting summary judgment to the plaintiff motion picture companies based on evidence that their copyrighted motion pictures were made available for download from the defendant’s computer); Motown Record Co. v. DePietro, 2007 U.S. Dist. LEXIS 11626, * 12-13, FN 38 (E.D. Pa. 2007) (“A plaintiff claiming infringement . . . can establish infringement by . . . proof that the defendant ‘made available’ the copyrighted work.”).
The keyphrase is, “made available.”
So to stay out of harm’s way, don’t make infringing files “available.” Don’t install file-sharing software that can be triggered to exchange any infringing music files you have on your hard drive. If you have such software, delete it. And if you must continue to keep this software for whatever reason, disable its file-swapping capabilities.
But Mark, you didn’t do your research. You should have checked the blogosphere to see what other takes there might have been on the RIAA’s stance. But you didn’t. You simply found the RIAA document in question, bounced it off some lawyer who it appears never read the relevant documentation, and then jumped to an illogical conclusion.
Your conclusion, unfortunately, led to you being punked by RIAA president Cary Sherman. Not so popular with the digital elites, Sherman nevertheless has been getting some sympathy from those who otherwise curse his name and the often greedy organization he works for.
Russell Shaw is an enterprise computing journalist, analyst and author based in Portland, Oregon. See his full profile and disclosure of his industry affiliations.
