William Patry just published a seven-volume treatise on copyright law, Patry on Copyright (yours for just over $1,500). He's also senior copyright counsel to Google and former copyright counsel to the House Judiciary Committee, former policy planning counsel to the Registrar of Copyrights and a former law professor at the Cardozo Law School. Here's his take on the Howell decision. (via Recording Industry vs The People) Patry praises Judge Wake for its treatment of the Hotaling case, which relieved a plaintiff of the duty to prove "actual" distribution when the infringing library neglected to keep any records of patron usage.
Hotaling and the making available theory are both based on the same mistake: copyright plaintiffs should be excused from the ordinary burden of proving their case. But why? Because it is too hard? I think not: thousands of cases outside of copyright are dismissed every year because plaintiffs cannot come up with needed documents, testimony, or other evidence to make out what may well be a meritorious case. That is how the system works, though, for better or worse, and there is no reason at all for copyright owners to be placed outside of it.
...From the beginning of copyright law, copyright owners have had the burden of proving their case, and rightly so. What we are seeing now in the making available cases and in other areas is not only an attempted reversal of centuries of copyright law, but of civil procedure as well. We have Judge Wake and others like Judge Nancy Gertner in the London-Sire case, and Judge Janet Arterton in Atlantic Recording Corp. v. Brennan to thank for resisting this effort.
In another part of the decision, though, Judge Wake allowed that the 12 downloads that MediaSentry conducted from the Howells' computer would qualify as unauthorized downloads.
The recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works.Rather, “the investigator’s assignment was part of [the recording companies’] attempt to stop [Howell’s] infringement,” and therefore the 12 copies obtained by MediaSentry are unauthorized."This makes no sense, Patry says.
Copyright owners are certainly entitled to use investigators to discover infringement (assuming the investigators use lawful techniques), but having authorized the investigators' conduct they cannot then rely on that authorized conduct to prove a cause of action whose principle requirement is that the conduct be unauthorized. This is the only respect in which the Howell opinion is disappointing, but that disappointment is real and may cause real problems in future cases.