Jammie Thomas Case – Support for the RIAA Under the Name ‘Progress and Freedom’

Yesterday, we reported on the MPAA suggesting that “international obligations” allow corporations to sue individuals for copyright infringement without evidence. In the mean time, there is support for the RIAA from a seemingly mysterious entity known as the Progress & Freedom Foundation.

It may be confusing for some to see an entity that uses “progress” and “freedom” in it’s name to support the “making available” theory, but a further investigation may reveal little in the way of surprises.

After reading the MPAA amicus brief, we read the Progress & Freedom Brief and noted some similarities – namely the ‘Charming Betsy’ example used over and over again. The similarities were more apparent when we read the headings in the third section of the MPAA brief and the headings in the “background” section of the Progress & Freedom Foundation:

From the Progress & Freedom Foundation brief:

A. In the Copyright Act of 1976, Congress Enacted “Futureproof” Copyright Protection That Moved America Toward International, Berne-Convention Norms.

B. When Negotiating the WIPO Internet Treaties, the U.S. Tried to Craft a Self-Executing “Making-Available” Right.

C. After Ratifying the WIPO Internet Treaties, the President and Congress Enacted Eight Implementing Statutes That Construed the Copyright Act to Grant a Making-Available Right.

From the MPAA amicus brief:

A. The Executive And Legislative Branches Have Properly Concluded That A Copyright Owner’s Exclusive Rights Encompass Making Available [...]The President [...]Register of Copyright[...] State Department

B. Judicial Precedent Supports The Conclusion That A Copyright Owner’s Exclusive Rights Encompass Making Available

C. The Language And Legislative History Of The Copyright act Confirm That A Copyright Owner’s Exclusive Rights Encompass Making Available

While heavily re-worded, the similarities were notable enough to arouse certain suspicion. So we decided to see who was part of the Progress & Freedom Foundation. Fortunately, their website had a list of “supporters” and this is what it has:

• AT&T
• CBS Corporation
• Comcast Corporation
• CompTIA
• Cox Communications
• DIRECTV
• EMI Group
• Entertainment Software Association
• Intel Corporation
• Mel Karmazin Foundation
• National Cable & Telecommunications Association
• NBC Universal
• The News Corporation Limited
• Sony & BMG Music Entertainment, Inc.
• Time Warner
• VeriSign
• Verizon Communications
• Viacom Inc.
• Vivendi
• The Walt Disney Company

Effectively a good portion of the major copyright industry as well as the communication companies including all four of the so-called “a-list” RIAA (Recording Industry Association of America) members. An interesting coincidence.

The question that remains is, why are members of the RIAA and MPAA trying to obfuscate their ties with the arguments under the name ‘Progress & Freedom Foundation’? Are they not perfectly capable of submitting their own briefs under the RIAA name instead? This match will no doubt stir some imaginations at the very least.

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