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“Making Available” is Not Infringement

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.

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.

Saboteurs in Silicon

Via Slashdot (DARPA Sponsors a Hunt For Malware In Microchips) & BoingBoing (Hunt for the kill switch in microchips) — A story making the rounds today discusses the possibility of embedded instructions that could disable or allow spying through hardware chips.

This may be one more reason to look toward the model Transmeta was pushing several years ago: hardware chips that rely on software (firmware). Code is easier to audit than silicon, and it would also potentially mean that the life of the hardware could be extended.

Obviously using such tech for every chip is price-prohibitive at this point, but critical chips could use a mixture of this model and blind redundancy (whereby two manufacturers build chips to spec and both are soldered, either one is arbitrarily used when that part of the hardware is invoked).

Non-critical chips should be vetted and reused in future projects with a battery of tests to verify integrity. A chip lifecycle should be established to upgrade the approved chips list on a regular basis.

Applopoly?

Update2: looks like they might be legit after all.

This Gizmodo exclusive video appears to show a Psystar box running OS X Leopard. Regardless, as many comments on that video point out any hobbyist with the desire and a copy of Leopard can build their own so-called “hackintosh” system. This thanks to the OSX86 Project.

I still think if you’re going to go Mac you should buy a real box from Apple. Their software isn’t the major departure many think it is. Their hardware is pretty good though, and the software does have many advantages over a Windows Vista system.

Still, for the power user the need to customize and control the system is the number one requirement and neither Microsoft nor Apple can provide that. Linux, FreeBSD, and the like, do just that. Computer users have been led to believe “oh, this software is broken, I must suffer as a result.” That’s diametrically opposed to the whole point of computers in the first place.

Update: By all accounts the company “Psystar” looks to be a hoax/sham. I never linked to them, or suggested they were a reputable company, but as always be skeptical of any business that doesn’t have a reputation. That said, the post (unedited) remains below and Psystar works fine as a hypothetical company for the purposes of the discussion. I’ve struck their name for effect.

Via CNet: Defiant Psystar back selling Leopard computers

Debate the aesthetics all you want, but I’d argue that Windows and Linux are, for the purposes of personal computing, close substitutes to Mac OS X. They can run a personal computer. They can connect you to the Internet. They can run a basic suite of productivity applications.

You may prefer Mac OS X for a variety of reasons, but Apple’s requirement that you can only run Mac OS X on Apple hardware doesn’t prevent you from using a personal computer. If the only other substitutes were Palm OS phones or AIX servers, maybe you would have a beef.

What is Psystar selling? Hardware. They are technically selling you a copy of Leopard too, but you could just as easily buy that from Apple directly.

Their product is designed to fill a particular need: to provide you with a computer that will run a specific piece of software. That software is Apple’s OSX Leopard in this case.

Unless you are supposing that Linux and Windows are (a) Apple products and (b) capable of running OSX the argument is dry.

The claim of monopoly regards the fact that you can only legally run OSX on Apple-branded hardware.

Of course, I think Apple is stupid for licensing their software in that way. They can license not to support non-brand hardware, but trying to justify legally that someone cannot do with their own property as they choose (with obviously reasonable bounds) is absurd.

If I want to buy an iPhone, hack it to run over a landline, just so I can brag about having the only wired iPhone on earth, that’s my damn business. If Apple sells me the phone and I’m not violating any FCC mandate or other law, it’s mine to do as I will.

I think Psystar has the right to sell these computers. I’m not convinced they should be selling them with hacked-to-run-on-beige Leopard. It seems to be more reasonable for them to provide the hardware, the software, and the know-how (including, for example, a linux disc to facilitate the beigification). The direct sale amounts to distribution which has hairier legal entanglements.