Court Helps Record Labels Define KaZaA’s ‘Shared Folder’ in Lawsuit

Says that "distribution" is the same as "publication" under copyright law in its refusal to dismiss their case against an accused file-sharer.

Yesterday a federal District Court in New York made an important ruling in a longstanding case against a woman accused of illegal file-sharing. Denise Barker is alleged to have have had more than 600 music files in her KaZaA "shared folder" for the purposes of illegally distributing them with others in violation of copyright law.

Her lawyers had argued that simply making music files available in the "shared folder" is not the same as actual distribution and that the plaintiffs had to prove that it actually took place for her to be guilty of violating the Copyright Act. For merely putting music in the "shared folder" is not actual distribution.

It was for this reason that they then petitioned to have the case dismissed and on which the judge ruled in this decision.

Judge Karas determined that although it didn’t constitute distribution it does constitute publication, and publication is clearly defined by copyright law.

"However, while the statute does not define ‘distribute’ or ‘distribution,’ it does define the term ‘publication,’" wrote the judge in his decision. "The question before the Court, therefore, is whether the Court should look to the definition of the word ‘publication’ to construe the meaning of the term ‘distribute’ in Section 106(3) of the Copyright Act."

The law states that publication is "the distribution of copies or phonorecords [i.e., audio copies of sound recordings] of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

The judge then determined that the case against Barker may proceed, but that record labels must amend its complaint to properly reflect the clarification.

He noted that the plaintiff must allege in the complaint that the defendant "made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." The labels’ complaint alleged that Barker made the recordings available for distribution to others – not that she "offer(ed) to distribute copies or phonorecords to a group of persons for purposes of further distribution."

The court gave record labels 30 days to amend their complaint.

What’s kind of scary is that this means that record labels can now argue that merely putting music files into a "shared folder" is a violation of copyright laws in and of itself. Whether by accident or by intent or despite any proof that you even actually illegally shared anything one can thus be charged for violating copyright law simply over a "drag and drop."

Pretty scary.

[Via ARS]

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3. 10 Law Professors Tell Court ‘Making Available’ Not Copyright Infringement
4. Class Action Filed Against Kazaa on Behalf of Customers Sued by RIAA for “Shared File Folders”
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