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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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May 17, 2005

More on "Making Available" and Patel's Napster Ruling

Posted by Ernest Miller

Prof. Eric Goldman on the Technology and Marketing Law Blog writes about Judge Patel's recent decision in the Napster investors case (New Ruling From Judge Patel in Napster Investor Suit). My post on that case here: Judge Patel Shoots Down Notion That the Right of Distribution Includes "Making Available". Read the decision: Memorandum & Order, Re: Plaintiff's Motion for Summary Judgement [PDF].

Goldman points out that a close reading of the decision indicates that Judge Patel hasn't yet determined whether 17 USC 106(3) (right of distribution) includes "making available." She has only determined that the Artists' Rights and Theft Prevention Act of 2005 didn't change the proper interpretation:

I read Judge Patel's 5/11 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner's distribution right.
He's right.

It'll be interesting to see what Judge Patel actually rules, she may not have to reach the issue.

What is happening here is that the investor defendants are seeking summary judgement on the case by claiming that there is not sufficient proof of direct infringement by Napster's users, which means the investor defendants would not have tertiary liability.

What that means, is that the lawyers for the RIAA were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit. It would have been almost ridiculously easy, but they didn't even bother to try, apparently.

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