This is a key matter that needs to be resolved in favour of common sense and the word of the law.
http://arstechnica.com/news.ars/post/20080304-eff-to-take-riaa-on-in-court-over-making-available-claim.htmlOne of the contested P2P cases we've been following is Atlantic Records v. Jeffery Howell, which is being heard in a federal court in Phoenix. Howell and his wife have been representing themselves so far, but are going to get a bit of high-profile help tomorrow. EFF staff attorney Fred von Lohmann is going to appear at a hearing tomorrow to argue that the mere presence of music in a KaZaA share is not enough to constitute copyright infringement.
The "making available" argument is one that keeps resurfacing in contested cases, and was one of the factors in the Jammie Thomas trial. The judge presiding over that case told the jury that the labels did not have to prove that anyone downloaded any files from Thomas—the mere fact that they were in a KaZaA share was sufficient to constitute copyright infringement.
Von Lohmann will argue against that reading of US copyright law in his appearance tomorrow. Since the Copyright Act specifically authorizes copyright owners to control copies distributed "to the public," there needs to be evidence that said distribution actually took place. "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," reads the EFF's brief.
If we are to follow the letter of the law it needs to be proved a copy was actually made "to the public", this is the key wording that needs to be resolved as MediaSentry are most certainly not the public as mentioned above but authorised agents of the recording industry, therefore the burden is on the recording industry to prove a copy was made, this is not something they can easily do.
