The music industry and “making available”

I know I’m kind of late with this one — a day or two being almost an eternity in the blogosphere — but I wanted to take note of the recent decision by a U.S. District Court judge in one of the RIAA’s high-profile copyright cases. the Atlantic v. Howell case involves a husband and wife and about 4,000 music files. The RIAA’s argument last year — an argument that was initially accepted by the court — was that even though the agency couldn’t prove anyone actually downloaded copies of the music from the Howell’s PC (other than a company working for the RIAA), the simple fact that their files were kept in a “shared” folder available to the Kazaa P2P software was enough to breach the law.

That decision was struck down this week, however: Judge Wake of the District Court of Arizona ruled that while section 106 (3) of the U.S. Copyright Act gives the owner of copyrighted works the exclusive right to “distribute copies” of those works, the law doesn’t define the term “distribute,” and so the courts have had to do so. The general rule, Judge Wake said in his decision, was that “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.” The decision (PDF link) goes on to quote copyright experts William Patry (“without actual distribution of copies of the [work], there is no violation of the distribution right”) and William Goldstein (“an actual transfer must take place; a mere offer for sale will not infringe the right”).

The court also rejected the RIAA’s motion on another point: the agency argued that the Howells were guilty of primary copyright infringement for sharing the music through Kazaa — but the court decision said that even if someone had downloaded a copy of the music from them, because of the way that a peer-to-peer network functions, that would still only be a case of secondary copyright infringement, since the downloader would not be taking the Howells’ file, but merely making a copy of their copy.

The decision ends with this statement: “The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.” The decision doesn’t mean the Howell case is over, however — it now proceeds to a regular trial. The RIAA had been pushing for what’s called “summary judgment,” which is a much faster process.

The U.S. decision is very similar to one that Canadian judge Konrad von Finckenstein (now the head of the CRTC, the federal broadcast regulator) delivered in 2004 when he was a judge with the Federal Court, in a case involving the CRIA’s attempt to get the names of file-sharers in Canada. In addition to accepting an earlier Copyright Board opinion that downloading was effectively permitted by Canada’s “private copying levy,” the judge ruled that simply putting files in a shared folder did not constitute evidence of infringement.

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