Another huge piece has fallen out of the wall Warner Music, EMI, Vivendi Universal and Sony BMG have built between themselves and their customers as they strive desperately to gain control of online music distribution and turn people with free choice into grovelling consumers with none.

In what’s rapidly becoming a major issue on- and offline, through their RIAA, the Big 4 are claiming just about anything you do beyond merely playing one of their music CDs is illegal and can land you in court facing fines totalling hundreds and thousands of dollars.

To all intents and purposes, singly and collectively, Warner Music, EMI, Vivendi Universal and Sony BMG are Big Music —- the corporate music industry —- and if you copy any of their ‘product’ to your PC, it’s copyright infringement, they claim, at the same time trying to say that isn’t what they’re saying.

According to the RIAA’s own site, “… burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns …”

So what’s Howell doing on the wrong end of an RIAA lawsuit?

At first the Court issued an order, at the RIAA’s request, saying that merely “making available” is a copyright infringement, and granting the RIAA’s summary judgment motion.

Mr. Howell thereafter moved for reconsideration, and upon reconsideration the Court granted Mr. Howell’s reconsideration motion and vacated its previous order.

The Court allowed further briefing, and specifically asked the parties to submit supplemental briefs on certain issues. (It was in response to that request that the RIAA submitted papers saying that copying one’s cd’s onto one’s hard drive is unlawful.)

And now - on Friday January 11th - in an extraordinary development, the Electronic Frontier Foundation has filed an amicus curiae brief, refuting the RIAA’s arguments as to the merits of its case.

In the brief the EEF says , “to Prevail, Plaintiffs Must Present Evidence That Defendants Actually Disseminated the Works in Question to Third Parties,” and, the controlling authorities establish that an infringement of the distribution right requires that a copyright owner demonstrate an actual dissemination of the copyrighted work at issue,” says the EFF.

The Electronic Frontier Foundation’s brief is a landmark document. It should be read from cover to cover by everyone who is interested in the scope of copyright law in the United States. This brief is the definitive statement on the RIAA’s spurious invention of a “making available” theory of copyright infringement, and should put an end to it once and for all.”

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