I'm not implying that there's any change in PW policy on providing 
downloads just yet, but for anyone who has followed the legal saga of 
music copyright enforcement, this is an interesting new development. The 
comments by various Slashdotters make interesting follow-on reading too.

http://rss.slashdot.org/~r/Slashdot/slashdot/~3/241134937/article.pl

NewYorkCountryLawyer <http://recordingindustryvspeople.blogspot.com/> 
writes /"A federal judge in Connecticut has rejected the RIAA's 'making 
available' theory 
<http://recordingindustryvspeople.blogspot.com/2008/02/default-judgment-denied-in-atlantic-v.html>, 
which is the basis of all of the RIAA's peer to peer file sharing cases. 
In Atlantic v. Brennan, in a 9-page opinion 
<http://www.ilrweb.com/viewILRPDF.asp?filename=atlantic_brennan_080213OrderDenyDefaultJudgment> 
[PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 
'actual distribution of copies', and cannot rely --- as it was permitted 
to do in Capitol v. Thomas 
<http://recordingindustryvspeople.blogspot.com/2007/01/index-of-litigation-documents.html#Virgin_v_Thomas> 
--- upon the mere fact that there are song files on the defendant's 
computer and that they were 'available'. This is the same issue that has 
been the subject of extensive briefing in two contested cases in New 
York, Elektra v. Barker 
<http://yro.slashdot.org/article.pl?sid=07/02/27/1917218&tid=123> and 
Warner v. Cassin 
<http://yro.slashdot.org/article.pl?sid=07/08/17/2039209&tid=123>. Judge 
Arterton also held that the defendant had other possible defenses, such 
as the unconstitutionality of the RIAA's damages theory 
<http://yro.slashdot.org/article.pl?sid=06/11/10/1319224&tid=141> and 
possible copyright misuse <http://p2pnet.net/story/12313> flowing from 
the record companies' anticompetitive behavior."


/I found the following comment especially interesting.  I don't know if 
it's valid and why / why not.

"""
I've always liked the library analagy. Its a public building, open to 
the public, and full of books. Photocopiers are placed conveniently 
often even marked with signs --> photocopiers this way. The books are 
carefully organized to make them easy to find. And there are computers 
scattered around so you can look them up that way too.

They've set everything up they possibly could to let you make copies. 
Yet if you do so, YOU are liable for infringement, not them.

By analagy, if I set up a computer, put it in a public place (like the 
internet), with songs available on it, and also set it up with tools 
that will make copies of those songs for you if you send it the right 
commands.

Now if you send my computer a command to transmit you a copy of the 
song... shouldn't YOU be liable for infringement? My computer isn't 
making copies and sending them out... YOU asked my computer to do it. 
All I did was set it up to listen to requests.

How is that fundamentally different from a library? If I could somehow 
operate the library photocopier by remote from my computer, would that 
suddenly shift the blame for making copies to them? I should think not. 
Its still YOU who have (remotely) operated the copier to make an 
infringing copy.

Finally, as a side note... if YOU own the CD in question, and feel its 
easier to download a copy using my publicly available computer to send 
you one, rather than ripping your own CD. Shouldn't that be legal. I as 
the computer owner have done nothing illegal by making it available. You 
have done nothing illegal because you have the right to make personal 
use copies of that song by virtue of the fact that you own a copy.

Why or Why not does this 'theory' work?

Finally if I charge you for access to my system that allows you to make 
copies am I a pirate then? Good question... interestingly, I still think 
not. If a library charges you
.10c page to use their photocopier and makes you use some sort of 
'printer card' that you prepay to fill... would that make them infringe? 
I doubt it...most libraries -do- charge for photocopies.

So its only infringement if they start making the actual copies 
themselves. Setting up the equipment and letting you operate it, even if 
they charge you for access, doesn't make them liable for infringement.

Although at some point you might argue that their is a conspiracy to 
commit infringement...
"""



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