RIAA takes one on the chin in Atlantic v. Howell

For quite some time now, the Recording Industry Association of America (RIAA) basically has been arguing that the mere act of placing songs in a computer folder whose contents can be shared with others over a peer-to-peer (P2P) network is tantamount to illegal distribution of the music.

It's an argument that the industry trade group has been using in courts in its relentless and controversial pursuit of alleged copyright infringers around the country. Last week, though, that strategy took a serious hit when a U.S. District Court judge in Arizona ruled that actual dissemination of material needs to take place for there to be a distribution infringement. In rejecting a motion for summary judgment in a copyright infringement case (known as Atlantic v. Howell) filed by the RIAA, Judge Neil Wake ruled that just making music available for sharing over the Internet doesn't by itself constitute the actual illegal distribution of that music.

"The court agrees with the great weight of authority that [the distribution right] is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," Wake wrote in his decision. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."

The case involves Arizona resident Jeffrey Howell and his wife Pamela, who were sued for copyright infringement in 2006 by seven major recording companies. In their suit, the companies alleged that the Howells had illegally distributed more than 50 copyrighted songs over Kazaa's P2P file-sharing network. The RIAA's evidence consisted of screenshots gathered by their private investigator, MediaSentry, showing the copyrighted files being available for download in a shared Kazaa folder on Howells' computer. MediaSentry also downloaded 12 songs from Howell's computer and claimed that an analysis showed the songs had been originally downloaded from other users on the Internet. The recording companies asked the court for a summary judgment that Howell had violated their exclusive distribution rights, essentially based on that evidence.

The Arizona court's rejection of that motion is being seen by some as a long-overdue check on the RIAA and its campaign to go after alleged music pirates. Lawyers representing individuals hit with copyright infringement lawsuits have long chafed at the RIAA's contention that simply making music available in a shared P2P folder is evidence enough of illegal distribution of the same.

"The court delivers the most decisive rejection yet of the recording industry's 'making available' theory of infringement," the Electronic Frontier Foundation (EFF) said in a noted posted on its Web site last week. The electronic rights advocacy group had filed an amicus brief on behalf of the Howells earlier this year. In that brief, the EFF noted that the RIAA's stance was "troubling" because it essentially amounted to suing somebody for "attempted distribution."

In a statement sent via e-mail, an RIAA spokeswoman expressed the group's disappointment over the ruling. "This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues," the spokeswoman said. "We are currently considering all options going forward."

She added that Wake's decision only applies to the specific district where it was rendered in Arizona. "It does not apply to cases filed anywhere else in the country, where the courts have consistently upheld our legal program," the spokeswoman said.

Maybe so. But the question that many are asking following last week's ruling is, for how long? The EFF has posted a link to the court's decision here.

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