A federal district judge has delivered a pretty resounding blow to a theory the RIAA has been using to win verdicts in its copyright-infringement lawsuit campaign. In Atlantic Records v. Howell, Judge Neil Wake refused the RIAA's motion for summary judgment based on the "making available" theory. The theory is that merely by making available to the public a copyrighted work the defendant "distributes" the work – regardless of whether the plaintiff can show actual distribution or if any distribution ever took place. I think this is an outrageous theory. It is a theory that basically nails innocent people for using legal software that works in ways that they don't understand. So I want to walk through the RIAA's argument and why the court knocks it down – at least for summary judgment purposes. A summary judgment, as you probably know, is proper when there is no disputed issue of fact. That is, there's nothing for the jury to decide because either the parties agree that some necessary fact exists, or the other side's rebuttal to the fact is so weak that it's not worthy of taking to trial. So this decision doesn't mean the RIAA won't win a jury over with its "making available" theory, just that the it's not strong enough to take the case away from the jury. It's a pretty typical RIAA scenario. The Howells installed Kazaa, they used it download some "illegal" music, they also ripped some of their CDs onto their computer hard drive. MediaSentry used Kazaa to identify the Howells as a source of copyright files and took screenshots to prove that 54 copyrighted songs were available for download from the Howells computer. MediaSentry downloaded 12 songs from the Howells, via Kazaa. The relevant section of the Copyright Code is section 106(3), which states that copyright owners have exclusive rights to "distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." The issue is, what does "distribute" mean? The statute doesn't define it. Judge Wake found that distribute means actually distribute, not merely make available and he points to a long list of cases, as well as commentators, so holding. The RIAA's primary authority for their "making available" argument is Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997). In this case, a church library illegally made copies of some copyrighted materials and placed them in microfiche. The library didn't keep records and the court held that even though there was no proof that any library patrons actually viewed the documents, the library was nonetheless liable for copyright infringement. The court found the library had "distributed" by placing the material in its catalog system and making it available to patrons. But the case is an outlier. It is simply "inconsistent with the Copyright Act," Judge Wake said, citing numerous cases supporting that proposition, including the very recent case of Elektra v. Barker, 2008 U.S. Dist. LEXIS 25913 (S.D.N.Y. Mar. 31, 2008): "Respectfully, Hotaling did not cite any precedent in holding that making copyrighted works available to the public constitutes infringement . . . [its] interpretation, even if sound public policy, is not grounded in the statute." While two courts have approved the theory (Universal v. Bigwood and Motown v. DePietro), it simply cannot be squared with the statute, the court said. At most (and there is substantial evidence the defendants didn't intend to or know they were distributing the files), the evidence proves attempted distribution – which is not a crime under the Copyright Act. There are more issues here, of course, but this is meat of "the most decisive rejection yet of the recording industry's 'making available' theory of infringement," as EFF attorney Fred von Lohmann said recently.