Another Fed Judge Says KaZaA's 'Shared Folder' isn't Distribution

New decision deals another major blow to RIAA's "making available" theory that simply putting music in KaZaA's "shared folder" constitutes copyright infringement.

In Atlantic v. Howell the RIAA lost another major court battle yesterday when federal judge Neil V. Wake in Phoenix ruled that simply placing music in KaZaA's "shared folder" does not by itself constitute copyright infringement.

"Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution," wrote judge Neil Wake in a ruling denying the record industry's motion for summary judgment against Arizona resident Jeffrey Howell. Wake also ruled that simply offering to distribute music does not infringe on the copyright owner's rights.

From the decision:

The general rule, supported by the great weight of authority, is that “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”

Merely making a copy available does not constitute distribution.

The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute “copies” of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. 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 RIAA immediately criticized the ruling in a response to Ars Technica. "This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues," RIAA spokesperson Cara Duckworth said. "We are currently considering all options going forward."

The decision was lauded by many who have been pointing out the RIAA's flawed logic for years. "This is going to be the gold standard now," said Ray Beckerman of Recording Industry vs The People.

He writes:

The RIAA's vehemently dishonest reaction demonstrates how important this eminently clear, quite "mainstream", not at all "strange", decision was. It was in fact the clearest and most mainstream decision of all on the subject, because it completely harmonized (a) the clear wording of the statute, (b) decades of case law applying the clear wording of the statute, and (c) unanimous agreement of all of the leading copyright law treatises. One wonders which "countless rulings" Ms. Duckworth is referring to: Motown v. DePietro, a case against a pro se litigant who never briefed the issue, or Atlantic v. Abner Anderson, another case in which the defendant never briefed the issue. And I guess Ms. Duckworth is forgetting about Atlantic v. Brennan, London-Sire v. Doe, and Elektra v. Barker, all of which thoroughly thrashed the RIAA's "making available" theory. - R.B.]

The record industry had accused Howell and his wife Pamela of piracy for placing 54 songs in a KaZaA folder. In addition, the record industry's investigator, Media Sentry, allegedly downloaded 12 of those 54 songs, including tracks by Santana, Billy Joel and Toni Braxton.

The record labels sought to hold Howell liable for violating the copyright to all 54 tracks, on the theory that Howell made them all available for download. The court not only rejected that theory, but also ruled that the record industry wasn't entitled to summary judgment for even the 12 songs that Media Sentry had downloaded.

"The recording companies have provided evidence that their own investigator downloaded 12 of the copyrighted sound recordings from Howell’s computer," wrote Judge Wake in his decision. "They have provided no evidence that their investigator or any KaZaA user ever downloaded any of the other 42 copyrighted sound recordings."

Howell said he had never intended to share those tracks, and the court said he should have a trial on that issue. "The record in this case does not conclusively indicate that Howell was responsible for making the 12 downloaded recordings publicly available," Wake wrote.

This new decision in federal court further bolsters previous decisions that reached the same conclusion, that actual distribution must take place to be found of copyright infringement and not simply by making music available.

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