Testing the legacy major label recording industry's (mis)interptetation of "Making Available"

We may eventually get a more sane interpretation of the "Making Available" right included in the 2 1996 WIPO treaties. A case involving the RIAA's (mis)interpretation is making its way through the US courts under their DMCA, with a reply Memorandum in Support of Motion to Dismiss Complaint filed by the RIAA in Warner v. Cassin.

This has been hotly debated in Canada as well, going back to 2001 when I first became involved in Copyright revision and attempts to interpret the excessively confusing 1996 WIPO treaties. The question then and now about "Making Available" is whether this was a new right being proposed, or whether it was simply a clarification that someone communicating by telecommunications was still doing so even if the time/place was set by the recipient (on-demand digital distribution, rather than being narrowly interpreted to only apply to broadcast - See WIPO Copyright Treaty Article 8, Right of Communication to the Public, WIPO Performances and Phonograms Treaty, Article 14, Right of Making Available of Phonograms).

A reasonable person would interpret this plain language as clarifying on-demand communications, but the major label Recording Industry has demonstrated many times it is not comprised of reasonable persons. The reasonable interpretation is a welcome enhancement of Canadian copyright law (and should be pursued even if the treaties are never ratified), while the unreasonable interpretation should be very clearly rejected.

What the RIAA is trying to do is change the law such that they are not required to gather any evidence of unauthorized activity to be able to sue someone for alleged infringement. The key reason why they lost the cases they attempted to launch in Canada against unauthorized P2P sharing of music was because they didn't bother to collect any evidence (didn't download and listen to a single song).

Having different interpretations of the same language has been one of the obvious failings of the Copyright revision process. As a technical person I read the current act and the treaties and understand these provisions in one way, but notice that this does not match what the policy maker, legal or legacy industry association interpretation of the same words. This is especially true of the different interpretation of obligations concerning "Technological Measures" and "Rights Management Information". This differing interpretation is not limited to only those who oppose the interests of the technical community (RIAA, MPAA), but also lawyers and policy people who are very clearly on our side.