Judge sides with RIAA: file sharing apps lead to direct infringement

[David Farber <dfarber () cs cmu edu>]

Begin forwarded message:

From: dewayne () warpspeed com (Dewayne Hendricks)
Date: August 27, 2007 2:53:13 PM EDT
To: Dewayne-Net Technology List <xyzzy () warpspeed com>
Subject: [Dewayne-Net] Judge sides with RIAA: file sharing apps lead  
to direct infringement

Judge sides with RIAA: file sharing apps lead to direct infringement
By Eric Bangeman | Published: August 27, 2007 - 11:08AM CT

<http://arstechnica.com/news.ars/post/20070827-judge-sides-with-riaa- 
file-sharing-apps-lead-to-direct-infringement.html>

One of the arguments the RIAA has made in every file-sharing lawsuit  
it has ever filed is that making a song available on a P2P network is  
the same as distributing it, therefore violating the record label's  
copyright on the song. So far, judges have been favorable to the  
RIAA's interpretation of the Copyright Act, with the latest victory  
for the RIAA coming in Atlantic v. Howell.

Pamela and Jeffrey Howell were sued by the RIAA in 2006 for copyright  
infringement. The Howells decided to defend themselves against the  
charges and submitted a remarkably short answer to the RIAA's  
complaint. In it, the Howells argued that their file-sharing program  
was "not set up to share" and that the files found by Media Sentry  
were "for private use" and "for transfer to portable devices, that is  
legal for 'fair use.'" Their three-paragraph response was miniscule  
in comparison to those filed by file-sharing defendants with  
professional representation.

In his summary judgment, Judge Neil V. Wake dismissed the Howell's  
arguments and handed the RIAA $40,500 in statutory damages, $350 in  
court costs, and a permanent injunction against future copyright  
infringement by the Howells. "Several cases suggest that Kazaa users  
commit direct infringement by employing the Kazaa program to make  
their collections of copyrighted sound recordings available to all  
other Kazaa users," wrote Judge Wake, citing three other cases as  
well as Howell's deposition in which he admitted ownership of the  
Kazaa account in question.

The RIAA lost no time in bringing the decision in Atlantic v. Howell  
to the attention of the judges in Warner v. Cassin and Elektra v.  
Barker, according to copyright attorney Ray Beckerman, who is the  
defense counsel in both cases. As we noted last week, both of these  
cases could be seminal for file-sharing litigation since the judges  
have heard arguments from both sides and are willing to rule  
specifically on the question of whether making a file available on  
KaZaA does indeed constitute distribution. In both cases, Beckerman  
argues that the RIAA's complaints show no "instance or example of  
'downloading' a recording; any instance or example of 'distributing'  
a recording; any instance or example of 'making [a recording]  
available';... or what law would support a claim for 'making [a  
recording] available.'"

[snip]



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