April 29, 2008 6:45 PM PDT

Court rejects RIAA's 'making available' piracy argument

Posted by Steven Musil

The recording industry's music piracy fight was dealt a setback Tuesday when a federal judge rejected the RIAA's "making available" argument in a lawsuit against a husband and wife accused of copyright infringement.

In Atlantic v. Howell, Judge Neil V. Wake denied the labels' motion for summary judgment in a 17-page decision (PDF), allowing the suit to proceed to trial. The argument--that merely the act of making music files available for download constituted copyright infringement--has been the basis for the Recording Industry Association of America's legal battle against online music piracy.

The RIAA sued husband and wife Pamela and Jeffrey Howell for copyright infringement in 2006, claiming the couple had used Kazaa to make copyrighted files available for download. In a deposition, Jeffrey Howell admitted loading the file-sharing software onto his computer and that the songs listed in the complaint were for personal use but that he had not placed the files in the program's shared folder. He said that the recordings were copies made from CDs he owned placed on the computer for personal use and not copies downloaded from Kazaa.

He also argued that that he was not the one sharing the files, but that it was the computer that was sharing the files.

While the couple lacks legal representation, the Electronic Frontier Foundation said it filed an amicus brief on behalf of the couple (PDF). The EFF argued against the RIAA's "making available" position, saying in a statement that it "amounts to suing someone for attempted distribution, something the Copyright Act has never recognized."

Judge Wake apparently agreed with that position.

"The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," wrote the judge in his order. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."

EFF staff attorney Fred von Lohmann called the order the "most decisive rejection yet of the recording industry's 'making available' theory of infringement."

The order is a bit of an oddity in that it's a reversal of an order Wake issued in August, in which he granted the RIAA's summary judgment and fined the Howells $40,850 in penalties and court costs. However, the Howells appealed and the judgment was later vacated.