Judge decisively rejects RIAA legal theory

Judge decisively rejects RIAA legal theory

Summary: 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.


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.

Topic: Legal

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  • Nice

    OK so if I buy a CD and let strangers walk in my house and listen to them I'm infringing on copyright! hahahaha!
    • No really

      It's more like if you play a Bach 3-part Invention on your
      piano, that you've practiced and worked hard at for a couple
      of years, that would be infringing to your strangers if they
      broke your door down and entered without you inviting them
      in to listen.
      • Actually...

        Based on the silly disclaimers regarding "public performance", theoretically, it IS a copyright violation if you let other (non-household) people watch/listen to material in your home.

        We used to play videos in our college student union for free. We got a "cease and desist the public display" letter.
  • This judge probably

    dissented just to get his name in the paper. Because
    hundreds of other judges have upheld the theory, because
    it's pretty much common sense that anyone throwing their
    music up on a peer to peer file sharing network is doing
    so in order to let others download it. And if it gets up
    there unknowingly, it's because they are downloading
    bootleg music. Either way they've broken copyright and are

    "I didn't know" has never been a valid defense.
    • "I didn't know" OFTEN is a legally valid defense.

      Re ""I didn't know" has never been a valid defense." Obviously, you are not an attorney. [b][i]Intent[/i][/b] often is a requirement both in civil and criminal actions. One example is someone who gives a friend a ride, the friend leaves drugs, a firearm, or some other prohibited item in the car and the driver is arrested for possession. "I didn't know" would be a complete defense.
      • wrong-o

        I just killed someone: "I didn't know murder was illegal"

        1st degree murder, cake.

        "I didn't know there were drugs in my car"

        ignorance has never been a valid defense. If it was, you could do 300mph in a school zone, so long as you "didn't know".
        • I didn't kinow

          If you are doing 50mph in a school zone that is plainly marked, "I didn't know" is not an workable arguement. But if you are cruising down the road in a 50mph zone, doing 50mph, and pass into an -unmarked- school zone, then it does become a valid arguement.
          Been there done it, not school zone, but a 55 to 35 transition, signs had been removed for road construction and I recieved a ticket, in court the ticket was dismissed because the signs were missing, and since I did not live in the area there was no way that I should be aware of the actual speed limit. Therefore "I did not know" was a valid arguement.

          • I didn't know either

            But I still got the ticket.

            My town decided that they wouldn't mark 25 mph zones, trusting that we'd all know that unmarked zones in a town are always 25 mph (remember driver's ed?).

            They ticketed hundreds of people that way, cause usually the adjoining streets were 35 mph zones.

            What was REALLY the case was that these were all high-crime 'hoods, and the cops wanted permission for fishing expeditions. When I got caught, I accused the mayor of racism and the signs appeared within days. I didn't believe the racism charge, but it certainly worked.

            In the case of copyright law, the RIAA's argument would be, "You should've known" and that indeed is sometimes way the law works.
    • REALLY ???

      Hundreds of Judges? REALLY ?

      That's amazing ! Why, if true, that would ...

      Wait, I don't think it IS true.
      • Why do you hate America?

        I bet you hate the troops too. Go back to Russia you commie freetard.
        Duke E. Love
        • Time to go back to your ward Duke


          We've stressed repeatedly that we have only reactivated your motor functions. It will take at least six months of intensive therapy to bring them up to spec, although your keyboarding skills are coming along nicely.

          Right now only certain core functions of your OS have been tested and enabled. They are mostly your environmental and machine stasis functions. We are now retraining your motor functions. You are currently operating with an OS which is roughly equivalent to a reptilian brain. That probably explains why you have been having so many dark thoughts lately.

          It will take many months of testing before we will be able to move to the next step Duke. At that time we will evaluate whether it is worthwhile to bring your logic circuits back on-line. In the meantime we intend to inject certain harmonic frequencies into your positronic brain to prevent hostile outbursts in the future. This is for your own good. It is important that we maintain public support for the DELove project. Your initial breakdown and bizerk was a big setback for us and we only have one chance to make it right.

          Your Project Team
  • I didn't know

    Actually, in legal parlance, "I didn't know" is "lack of intent." And lack of intent has always been a valid defense for crimes. Copyright infringement is a statutory tort, so we go by what the law says. I didn't get into it here, but you can read the decision to see the discussion of what "distribution" means. Most courts have held that it means distributing, putting the thing in others' (virtual) hands. This court describes at some length how the word "publishing" was used in other sections and how Congress clearly didn't use that word in this section.

    So how does it get up there? If you've ever used p2p software you know that they share by default, and Kazaa basically being malware, it quite possibly searches your drive for any and all media files and serves by default. If you've ever spent time with a typical user, you know they have no idea how to control software.

    So it's perfectly reasonable to believe 1) they didn't know; 2) they didn't intend; 3) they didn't actually distribute.

    To your point, the law doesn't specify intent. They could have distributed without so intending and that would make theme liable -- but the burden is on plaintiffs to prove actual distribution.
    • Question...

      Would you say that up to now, the RIAA has got off easy by not having to prove actual distribution; will an actual trial be on the RIAA's side like it has been in the past; or is this case somehow different from them...possibly because the defendant claims that he did not put any of the music copied from his CDs in a shared folder?
      • Yes

        I would say they have got off easy because showing that defendants used P2P software has essentially been enough to prove their case because of the sharing-by-default behavior. Fred von Lohmann at EFF <a href="http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-court-rejects-making">says</a> it will be a bench trial, since neither side requested a jury. The judge's ruling as to RIAA's burden of proof will control the case, so it will be different.

        It seems to me that unless RIAA can show actual distribution, that some person actually made a copy from the Howells, they will be acquitted.

        The open question I guess is whether this case has ramifications in other courts. It certainly claims to have the weight of authority on its side so I think it would be hard for other courts to ignore.

        There's a good synopsis at <a href="http://recordingindustryvspeople.blogspot.com/">Recording Industry v the People</a>
        • Thanks for the response

          From looking at the 1st few cases in your link, it looks like the RIAA hasn't always got their way. In this situation, I do believe it is the first time I have read about considering the definition of 'distribution' and considering specifically how the copyrighted files got into a shared folder. I also find it very interesting that this will be a bench trial...the RIAA will have to sway someone who has a better understanding of laws than laymen do.
        • Wait a second

          [i]It seems to me that unless RIAA can show actual distribution, that some person actually made a copy from the Howells, they will be acquitted.[/i]

          Doesn't this part of your article pretty much satisfy that requirment?:

          [i]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. [b]MediaSentry downloaded 12 songs from the Howells, via Kazaa.[b][/i]
          Hallowed are the Ori
          • MediaSentry

            [i]MediaSentry downloaded 12 songs from the Howells, via Kazaa.[/i]

            Richard didn't present the whole case. In the link in the first paragraph, the EFF stated something to the effect that actions taken by the plaintiff or one of its agents can't be called copyright infringement.
          • that was a losing argument

            That was the EFF's argument but the judge slapped it down. See my "yes but" post - argue it at trial.
          • Interesting Twist

            The court said that a download by (or on behalf of) the copyright owner won't support an infringement claim because the downloader already owns the intellectual property being downloaded.
          • yes, but a question for trial

            The judge ruled that this is a reasonable inference but that Howell may well have an equally reasonable explanation and that both sides should present their claims at trial, rather than automatically giving the victory to RIAA at summary judgment (sorry for bad breaks):

            reasonable trier of fact could conclude that it was Howell who placed the copyrighted
            files into his shared file folder; Howell admitted that he downloaded KaZaA onto the
            computer, that he created the KaZaA user account through which the files were made
            available to the public, and that he authorized sharing other types of files. On the other
            hand, Howell has sworn that he did not place the copyrighted sound recordings in the
            shared folder, has testified that other users of the computer could be responsible, and has
            identified evidence purportedly showing that the Kazaa program was, without his
            authorization, making files not in the shared folder available for download. Viewing all
            the evidence in the light most favorable to Howell, there exists a disputed issue of fact
            regarding Howell?s responsibility for sharing the files. Accordingly, the recording
            companies? motion for summary judgment is also denied with respect to the 12 copies
            downloaded by MediaSentry.