EFF Takes on the RIAA in File-sharing Case

It has happened and it will be taking place tomorrow in court. The EFF yesterday announced that they will be challenging the RIAAs ‘Making Available’ theory in court.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

Can the Recording Industry Association of America sue someone for having a song in a shared directory or share point? That’s what the RIAA is hoping for. Not only would there be no need to download the song to make sure it is legitimately their content and not an independent artist faking a file to promote their own works, but there would be no need to sue someone for uploading a song to anyone to prove that an infringement has occurred in the first place.

If that doesn’t sound fair and balanced, the Electronic Frontier Foundation would most certainly agree. Tomorrow, the EFF will be on the defense in court trying to stop a lawsuit against two allege Pheonix file-sharers for having copyrighted works in a “shared” folder. The idea is a newer twist to the RIAAs “making available” theory which suggests that even if a song is not downloaded, there is still damage being done to the copyright holders and, thus, allows a record label to sue a particular IP address.

“This amounts to suing someone for attempted copyright infringement — something the Copyright Act simply does not allow,” said EFF Senior Staff Attorney Fred von Lohmann. “If the RIAA wants to keep bringing these suits and collecting big settlements, then they have to follow the law and prove their case. It’s not enough to say the law could have been broken. The RIAA must prove it actually was broken.”

While it’s a newer approach in the courts to bring into law “attempted copyright infringement”, it isn’t new in US politics. The idea was proposed by Attorney General Alberto Gonzales last year in the Intellectual Property Protection Act of 2007.

The Atlantic Records, et al. v. Howell case, as it is officially known, is scheduled to commence at 2PM tomorrow. The EFF has posted a brief (PDF) in the case.

Drew Wilson on Twitter: @icecube85 and Google+.

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