Judge says making files available is the same as distributing

Defendants in RIAA copyright infringement suits got some bad news today when Judge Neil V. Wake granted summary judgment for RIAA in the case of Atlantic v. Howell.

Pamela and Jeffrey Howell defended themselves in the suit and claimed simply that their file-sharing program was "not set up to share," the files found were "for private use" and "for transfer to portable devices, that is legal for 'fair use,' " Ars Technica reports.

The RIAA won $40,500 in statutory damages, $350 in court costs, and a permanent injunction against future copyright infringement by the Howells.

While the Howells' answer to the charges was notably brief compared to answers prepared by lawyers, the Howells' essentially argued that merely running Kazaa wasn't tantamount to direct infringement. That's a seminal argument in two better-argued cases currently pending: Warner v Cassin and Elektra v Baker. In those cases, courts will rule directly on the issue of whether making file available in Kazaa (the default setting, by the way) constitutes distribution for purposes of the Copyright Act.

In both cases, lawyer Ray Beckerman is arguing that the RIAA's complaints show no "instance or example of 'downloading' a recording; any instance or example of 'distributing' a recording; any instance or example of 'making [a recording] available';... or what law would support a claim for 'making [a recording] available.'"

Beckerman says Judge Wake's ruling is flawed in that he conflates "making available" with "distributing" but offers no explanation as to why the two are the same.

The Howell case is the first one to take the "making available" issue head-on.