Judge Says Music Sharing Doesn't Necessarily Equal Infringement | Listening Post from Wired.com
Judge Says Music Sharing Doesn't Necessarily Equal Infringement | Listening Post from Wired.com:
One of the biggest bones of contention between the RIAA and file-sharing lawsuit defendants has been whether making a file available to others constitutes distribution of the file.
In other words, if I drag a song about a tree falling in the woods into my Kazaa "shared files" folder but there's no proof that anyone downloaded it, have I committed copyright infringement?
In most cases, the answer has been yes. Judge Neil V. Wake, presiding over Atlantic vs. Pamela and Jeffrey Howell, bucked that trend by denying the RIAA's motion for summary judgment in that case.
According to him, just because the RIAA's investigative partner MediaSentry was able to download 12 copyrighted songs from the Howell's Kazaa account at two in the morning on January 30, 2006, that doesn't necessarily mean that other people were downloading the songs too. In fact, the judge held, there is no proof that the couple distributed copyrighted songs to anyone except the MediaSentry investigator.
"The statute does not define the term 'distribute,' so courts have interpreted the term in light of the statute's plain meaning and legislative history," wrote the judge. "The general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.'" Last year, the same judge ruled the other way on this case, so the Howells and their attorneys must have made significant progress since then.
It may have helped that they say they never meant to use Kazaa for music. Jeffrey Howell admitted in a deposition that he only meant to use Kazaa for porn, freeware and e-books. According to him, Kazaa shared, without his knowledge, music he had ripped from CDs. But the thrust of the judge's logic was that the RIAA failed to prove that the Howells distributed copies of the song. Merely making them available to other users did not constitute infringement in this case -- at this point, anyway.
The RIAA, predictably, is a bit stymied by this result and indicated it could appeal. "This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues," said an RIAA statement. "We are currently considering all options going forward."