One of the biggest bones of contention between the RIAA and file-sharing lawsuit defendants has been whether making a file available to others constitutes distribution of the file.
In other words, if I drag a song about a tree falling in the woods into my Kazaa "shared files" folder but there's no proof that anyone downloaded it, have I committed copyright infringement?
In most cases, the answer has been yes. Judge Neil V. Wake, presiding over Atlantic vs. Pamela and Jeffrey Howell, bucked that trend by denying the RIAA's motion for summary judgment in that case.
According to him, just because the RIAA's investigative partner MediaSentry was able to download 12 copyrighted songs from the Howell's Kazaa account at two in the morning on January 30, 2006 doesn't necessarily mean that other people were downloading the songs too. In fact, the judge held, there is no proof that the couple distributed copyrighted songs to anyone except the MediaSentry investigator.
Update: However, it could mean that the same 12 songs downloaded by those investigators constitute infringing distribution on the part of the Howells, according to a closer reading of the judge's order by Threat Level. Apparently, a copyright owner can infringe its own copyright. (In other instances, it has been assumed that downloads by MediaSentry, an agent of the RIAA, were non-infringing.) The jury must now decide whether the Howells shared the files intentionally, among other outstanding issues.
"The statute does not define the term 'distribute,' so courts haveinterpreted the term in light of the statute's plain meaning andlegislative history," wrote the judge. "The general rule, supported bythe great weight of authority, is that 'infringement of [thedistribution right] requires an actual dissemination of either copiesor phonorecords.'"
It may have helped that they say they never meant to use Kazaafor music. Jeffrey Howell admitted in a depositionthat he only meant to use Kazaafor porn, freeware and e-books. According to him, Kazaa shared, without his knowledge, musiche had ripped from CDs. But the thrust of thejudge's logic was that the RIAA failed to prove that theHowells distributed copies of the song. Merely making themavailable to other users did not constitute infringement in this case – at this point, anyway. [See update above – the judge maintains that MediaSentry's downloads could constitute infringement on the part of the Howells.]
The RIAA appeared stymied by this result and indicated it will press the issue. "This is astrange decision that is outside of the mainstream andinconsistent with countless court rulings on these issues," said anRIAA statement. "We are currently considering all options goingforward."
The Order (on ilrweb)
See Also:
- Legal Expert Set to Discredit RIAA's P2P Lawsuit Techniques in Court
- Judge Agrees With RIAA, "Making Available" Equals Copyright Infringement
- RIAA Training Video Leaked onto Torrent Sites (Updated)
- Judge Dismisses RIAA Racketeering Lawsuit
(via Billboard, Recording Industry vs the People; Photo: &y)
