“Making Available” is Not Infringement

Via SlashdotNewYorkCountryLawyer Debates RIAA VP:

From the debate transcript:

MR. BECKERMAN: The law runs the country. This is a nation of law, not a country of lawyers who are best paid by large content owners.
PROF. HANSEN: Ray, let’s not get ad hominem. You know what ad hominem means? You’ve got a losing argument and you’re desperate. So just stick to the merits. […]

I guess the insinuation there is that calling someone a lawyer paid by large content owners is an ad hominem in the eyes of Professor Hansen. I found that funny, because it colored the prior statement by Mr. Beckerman darker than it originally read for me.

Anyway, this debate was all about whether simply “making available” equates to an infringement of copyright. That is, whether anyone actually downloads the files, is simply allowing the possibility equal to dissemination in terms of infringing the copyrights of the files?

First and foremost, making available in a more concise definition is simply the announcement of existence some file that is labeled in some way. If I write a hyperlink here: Buy a Time Machine from Jesus I’m making a certain representation about the contents to be found at that link. In practice that link could contain anything.

It could even actually contain Jesus’ ecommerce website where he sells time machines. Without executing the link (that is, generating a HTTP request to the server it specifies for the document it specifies, or otherwise executing whatever command is intended by the semantics of this hypertext document) one cannot know what it leads to.

And yes, that can actually be proven by looking at the halting problem from Computer Science. Basically, if you could prove for all cases what clicking a hyperlink would do, then you could solve the halting problem. Because it can be shown the halting problem is unsolvable, it follows that the link-clicking problem cannot be solved either.

Now, for a subset of links, or in this case the subset is the filesharing software’s function to execute the downloading of a file, it is conceivably provable. But then, it must be shown, in court, that executing that function of the software would result in the transfer of copyrighted content which is particularly described and proven to be owned by the plaintiff. And even then, you’ve only proven that the defendant is in fact “making available” said content.

Now, can making available constitute an infringement on the rights of a copyright holder? Typical infringement refered to as distribution or dissemination is infringing because without authorization from the owner some third party gives possession of the content to another party. This differs from making available drastically. Making available is more like mentioning you have the content.

A software anthropomorphization:

Bill: Anyone got the Hill of Soap song, “Noodles are Cruel?”

Steve: Hey I got that song.

Ah, but that’s even still an overbroad example of making available. One wouldn’t even have to ever respond to a query for the content’s availability! It just has to be in a folder that the software has marked as “shared” to be considered “making available.”

And we have reached the pintacle of the absurdity of “making available” as infringing copyright. You download the file sharing software. You install it. Instantly you have infringed countless copyrights because the software automatically scanned your drive and marked all multimedia folders as “shared.”

So, frankly, making available cannot possibly constitute infringement of copyright. Copyright is there to give an incentive to create content. The incentive is that by creating content you have the exclusive right to distribute, perform, profit from, etc. for a period of time. That right does not include “keeping people from discussing your work,” or announcing or responding to a query about whether they have that work on their computer.

Give it five years and the RIAA will want everyone to be “making available” the knowledge of which content they possess so they can keep tabs on what’s hot. They’ve got their backwards pants on for years now, but within the five next years they will finally wake up.