US court questions music industries reasoning in file sharing trial

In one of the many court cases that the US music industry has filed against alleged file sharers, the plaintiff – the RIAA, a trade group that represents the US recording industry – has suffered yet another setback. A US District Judge in Arizona has refused to hand down a summary judgment against the defendants, thereby making it likely that the case will be heard in normal proceedings as Atlantic Records vs. Howell. Because the judge goes into detail in his explanations and how they might apply to other file sharing cases in general, this ruling could set a precedent for similar cases.

In his 17-page decision (PDF file), Judge Neil Wake thoroughly dismisses the controversial standpoint of the RIAA's lawyers, who hold that the mere possession of copyrighted music in a shared Kazaa folder constitutes a violation of US copyright. They argue that merely making the files available constitutes distribution in the spirit of copyright law, so that such a shared folder violates the label's exclusive distribution rights. This "making available" theory has been called into question in other court cases. Those facing charges brought by the RIAA, claim that US copyright law requires demonstration of the actual sharing of a copy.

The Arizona judge feels that the RIAA's logic is faulty and not in line with current legislation. He writes that most federal courts have thrown out the "making available" theory. As Wake points out, the mere existence of a music file in a shared folder does not prove that a copy has been shared. Rather, such a folder is evidence of an attempt to break the law, for which there are no penalties.

Judge Wake also deals with the comments of his New York colleague Kenneth Karas, who held that "distribution" was synonymous with "publication", in which case "making available" would indeed violate copyright law. But Wake argued that such an opinion would not hold up since the law on publication refers specifically to physical copies and not to electronic files. Even if it is assumed that distribution and publication are synonymous, the law nonetheless requires demonstration of the sharing of a copy with a third party.

Wake also feels that a number of other issues have to be cleared up. For instance, it is not sufficiently clear that the accused put the 12 songs in question into the P2P network intentionally, nor is it clear whether making songs available via Kazaa does not merely constitute liability "as a secondary infringer of the reproduction right". The judge therefore ruled in favour of the accused, explaining that these items need to be clarified in normal court proceedings; therefore, no summary judgment could be handed down. The RIAA is quoted in Ars Technica calling the decision "strange" and "inconsistent with countless court rulings on these issues". The Association says it will review its legal options.

The Howells represented themselves but also received assistance from the Electronic Frontier Foundation (EFF), which filed a petition and gave oral statements. The EFF called the decision a "big victory" and the "most decisive rejection yet" of the RIAA's line of argument. Wake himself did not support the EFF's reasoning that MediaSentry downloads from shared folders cannot be regarded as illegal in themselves on the basis that MediaSentry represent the record companies – the legal copyright holders – and therefore their action in downloading the files cannot demonstrate illegal distribution.

The case of Atlantic vs. Howell was unusual from the start. The music industry first brought charges against the Howells in 2006. Mr. Howell represented himself though he is not a lawyer. Judge Wake initially ruled in favour of the RIAA and granted a summary judgment, including legal fees and damages totalling $40,850, but later overturned that decision when Howell provided his side of the story. The EFF says it will be assisting Howell in his search for a lawyer for proceedings that the organization expects will start in September.

(trk)