RIAA dismisses Warner v. Cassin, "making available" case --> CDMCA

Ray Beckerman of "Recording Industry vs. The People" has posted the latest with RIAA's "Making Available" theory. Likely believing that the USA's DMCA is not strong enough on "making available" (IE: that it still requires evidence of infringing activities), they have dismissed their own "Warner v. Cassin" case.

"Making available" is one of the policies to watch closely with the tabling of the new Copyright bill this morning. Will copyright holders have to collect evidence of infringing activity, as simple as downloading and examining a file to know for sure what its contents were? This is what lost CRIA their case in Canada, and is what seems to be causing the RIAA to lose cases in the USA. It was our much stronger federal privacy law PIPEDA that was the major difference, not some alleged flaw in Canadian copyright law that a Canadian DMCA would "fix".

Key policy areas in DMCA (WTC + WPPT + ISP liability):

  • Does "Making available" remove requirements for evidence of actual infringing activity (distribution, communication)?
  • Does "Legal protection for TPMs" apply to otherwise non-infringing activities? Does it create a new "Right of non-interoperability" for copyright holders, and a new "right to not hand keys over to owner" for IT device manufacturers?
  • Does the ISP liability regime require notices be truthful, with adequate consequences for invalid or false notices (Which are extremely common)? Will a court need to be involved to verify the validity before action is forced to be taken by the ISP beyond being a communications carrier (IE: notifying the customer of the notice)?

If the government presumed that copyright holders could do no wrong (even though the entertainment industry is increasingly launching Denial of Service and other computer crimes), and that other Canadian citizens could do no right, then this bill will be as unbalanced as predicted. Hopefully the predictions are false.