9:15 a.m. PT: I’ve blogged about a case called Atlantic Recording Corporation v. Pamela and Jeffrey Howell a few times, and I wanted to give you an update.
You may recall that the Recording Industry Association of America’s (RIAA) sued a couple for transferring copyrighted digital music files to a peer-to-peer network (P2P) called Kazaa.
According to an earlier RIAA motion for summary judgment, Jeffrey Howell admitted to loading Kazaa file-sharing software onto his computer and placing the files at issue into the folder. The court granted the motion for summary judgment. (A summary judgment means that a court makes a judgment in a case without a full trial.)
Howell later said he admitted no such thing. In his motion to reconsider, he admitted creating a Kazaa account, installing Kazaa software, and authorizing “certain types of files to be shared through KaZaA.” But he denied placing copyrighted files into the shared folder or authorizing sharing those files. He claims that his computer placed the files into the Kazaa folder.
It wasn’t me. It was my computer! Sounds strange (as a defense), but it makes a difference legally.
The RIAA filed another motion for summary judgment. On Monday, a federal court denied it on two grounds. Download the 17-page order in PDF.
As I mentioned before, the RIAA wants to nab people on a “make available” claim. If a user has placed copyrighted files in a P2P folder, the files have been made available for distribution. Regardless of whether the user intends to distribute the files or actually distributes the files, he has infringed copyright and should be held liable.
Last month, the court in Elektra v. Barker rejected the make available claim, as did the court in the present case. After some discussion about what constitutes “distribution” under the Copyright Act and how courts have interpreted the term, the court said that infringement of a copyright holder’s distribution right requires actual dissemination of the work. Making a copy available doesn’t constitute distribution.
The court denied the motion because there is a “disputed issue of fact” whether Howell was responsible for the file sharing. As I noted earlier, he said that his computer placed the files in the shared folder. This was the court’s first ground for denying the motion.
The court also discussed primary and secondary copyright infringement. If someone places a file in a P2P folder and another copies it, the one who placed it in the shared folder is potentially liable as a secondary infringer. From the motion:
The courts and commentators have recognized that making a copyrighted work and the facilities to copy it available to another implicates contributory, not direct, liability for copyright infringement.
If the owner of a shared folder gives the public access to a file and the means to make an unauthorized copy, the owner is not the primary infringer but potentially a secondary infringer.
The RIAA’s motion for summary judgment is based on a direct or primary liability theory, and there is insufficient evidence to “determine conclusively whether the owner of the shared folder distributes an unauthorized copy (direct violation of the distribution right), or simply provides a third-party with access and resources to make a copy on their own (contributory violation of the reproduction right).” This is the second ground on which the motion for summary judgment was denied.
The court added that in order to hold Howell even contributorily liable, the RIAA has to prove a third party actually obtained an unauthorized copy of the file. Howell can’t be secondarily liable unless the RIAA proves the existence of a “direct and primary” infringer. Back to the drawing board!
The court concluded (emphasis added):
The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.
Indeed. It’s up to the legislature (Congress, in this case), the branch of government that writes laws, to expand the Copyright Act for “new technological innovations.” (And the laws should be updated for the digital age.) The judiciary branch merely interprets those laws.
Check Google News for more about the case.
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- Recording Industry vs. The People
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