Tue, Apr 29 2008 2:09 AM aheram

News: Court Rejects "Attempted Infringement" Claim

A district court has resoundingly rejected the music industry's claim that the mere potential of copyright infringement (the "make available" theory of infringement) does not constitute infringement of distribution rights. From the Electronic Frontier Foundation:

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that "[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords." The court goes on to conclude that downloads by the recording industry's own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

Unlike in Elektra v. Barker, the court in this case rejected the RIAA's claim that they can sue people for attempted copyright infringement. It is highly encouraging, as the RIAA would have no doubt feel it can starting suing people for conspiracy to commit copyright infringement.

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