Arizona District Court Judge Neil V. Wake dealt a
heady blow to the RIAA last Monday, striking down its popular “making
available” theory as insufficient grounds for accusations of copyright
ruling (PDF) set a higher burden of proof for the RIAA’s campaign of
litigation: RIAA investigators – not third party agents, like those at
MediaSentry – must download files from a defendant’s hard drive in order to
accuse them of unlawful distributing copyrighted materials.
The decision comes from the ongoing case of Atlantic v. Howell, in which the RIAA
alleges that Jeffrey Howell and his wife pirated music by making it available
for download via KaZaA’s Shared Folders feature. Its claims were supported by
screenshots of Howell’s shared folder, as visible to other KaZaA users.
Howell claims that he never intended to place his music
within KaZaA’s shared folder, “because that’s not where it belongs.” KaZaA
shared the folder without his permission, he said.
In his ruling, Wake wrote that infringement of copyright
owners’ rights “requires an actual dissemination of either copies or
phonorecords.” Making the music available, which Wake referred to as “an offer
to distribute,” does not necessarily constitute actual distribution and
therefore inapplicable to the RIAA’s claims. Further, wrote Wake, the court
disagreed with the RIAA’s claim that the terms “distribution” and “publication”
are alike, as the “publication” of a good is merely the “offering” to
distribute copies of a copyrighted work “for purposes of further distribution.”
MediaSentry investigators were able to download 12 of
Howell’s files, however, but the court could not conclusively decide that
Howell was responsible for making those files available. Wake cited Howell’s own
testimony: Howell denied authorizing any of the songs in question for download
to other KaZaA users, either by placing them into his shared folder or by using
KaZaA’s interface to add them to his shared files list. Adding insult to
injury, the EFF filed an amicus curiae brief
that claimed that copyright owners cannot infringe their own copyrights, as was
the case with MediaSentry acting on the RIAA’s behalf.
It’s important to note that the “making available” theory,
as applied in Atlantic v. Howell, is only
insufficient for claims regarding the infringement of a copyright owner’s distribution
rights; it is sufficient, however, for proving infringement of a copyright
owner’s right to reproduce their work – Wake compares this to “a business rents
customers video cassettes and a room for viewing the cassette.”
Last December, the RIAA claimed that Howell’s personally ripped
music collection was an “unauthorized copy” of its copyrighted works – however the
meaning of this statement was unclear and it did not directly answer Judge
Wake’s original question.