EFF tries to quash labels' "making available" claims
The music labels' case against Jeffrey and Pamela Howell has taken on mythic dimensions over the last few weeks after the Washington Post went a little nuts and implied that the labels were suing the couple for making personal rips of their CDs (it later corrected the story). The truth is that Howells are being sued for having those rips in a shared KaZaA folder. But lost in the controversy over the RIAA's refusal to say that personal CD ripping is legal is the fact that the Howells aren't being sued for swapping songs with thousands of people around the world; instead, they are charged with making songs "available" for download. In a new amicus brief (PDF), the EFF argues that there's no such thing as "attempted copyright infringement." Yet.
Because the law specifically gives copyright owners the ability to control copies distributed "to the public," the music labels need to show that such distribution took place. The EFF points out that the copyright holder itself can hardly be considered "the public," and goes on to claim that "an authorized agent acting on behalf of the copyright owner also cannot infringe any rights held by that owner." Their conclusion is therefore that "where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place."