Arizona Judge Shoots Down RIAA Theories

NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"

The reason...

[Skeet112]

The main reason you don't hear about the RIAA winning any case is because.....

They don't.

They use their Gestapo mindset and frivolous law-suit threats until the person they are harassing into submission, and finally settle out of court. The one's you actually hear about are the ones that go to court, and those tend to be in the defendant's favor... (Aside from the legal fees that you'd have to pay.)

Re:I have to say...

[NewYorkCountryLawyer]

If the defendant is found to be innocent does the Judge's decision today set a decent precedent?

Today's decision is an important precedent no matter what happens at the trial. It is the clearest and most comprehensive decision to date on the RIAA's campaign to enlarge the 17 USC 106(3) distribution right. This decision, unlike Judge Karas's decision [blogspot.com] in Barker [blogspot.com], is mainstream. It takes the statute, the caselaw, and the legal scholarship, and brings it all home.

Not Evisceration, just careful consideration.

[nixNscratches]

While this does weaken the RIAA's case, they still have a decent shot at conviction. All that was denied here was a shot at summary judgement. At issue here is the idea that making a copy of a protected work available is not the same as copying, but may leave the defendant open to contributory liability.

Howell contends he never intended to share, nor authorized KaZaa to share his music files and it may not be possible for the RIAA to prove otherwise.

For what it's worth, he also poked holes in EFF's argument that Media Sentry - as an agent of the RIAA, cannot infringe on their own copyright. He argues that the RIAA / et all never intended to license Media Sentry to authorize distribution or reproduction and therefore the 12 copies Media Sentry downloaded stand up as "unauthorized" copies of the works. The issue remains open as to whether Howell can be held liable for these copies.

Re:Once again a court

[nixNscratches]

Actually, Howell claims he never downloaded any music. According to his testimony, the music files on his PC were ripped from CDs he owns. He used KaZaa to download porn and free e-books which he gave KaZaa the right to "share". At the heart of his defense is the idea that KaZaa searched his hard drive for media that was never intended to be shared and made that available without his knowledge or consent.

Re:RIAA = Warner Universal Sony EMI (WUSsiE)

[Anonymous Coward]

Err. Happen to look at the subject line Ray? Attention to detail is essential when chastising.

Re:Not copyright infringement...

[Ravensfire]

While IANAL, if you read the EFF brief & the judgement in depth, an interesting defense is being promulgated... Even if the defendants specifically allowed MediaSentry to download these files, as authorized agents of the copyright holders, no copyright infringement actually took place!!! There's case law that says that a copyright holder (or their agent) cannot infringe on their own copyright... Hence the new, stupid, "making available" claim...

What does that mean? Assuming this argument is valid (which I can't see how it couldn't be), the plaintiffs would have to go back to square one and find someone else on Kazaa who downloaded specific files from the defendants--specifically infringing on copyright law. And for anyone who has used P2P before, how often do you know (or remember) who you're downloading from? Personally, I think that borders on impossible to prove--unless Kazaa keeps some sort of detailed log data file that MediaSentry would have to gain access to...


The judge threw that argument out the window.

From the ruling "Amicus curiae, Electronic Frontier Foundation ("EFF"), responds that a copyright owner cannot infringe its own copyright, so its agent also cannot infringe the copyright owner's rights when acting on the owner's behalf. But the recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works. Rather, "the investigator's assignment was part of [the recording companies'] attempt to stop [Howell's] infringement," and therefore the 12 copies obtained by MediaSentry are unauthorized. "

-- Ravensfire

Re:Once again a court

[mr_matticus]

This case is a civil matter, yes. Distribution absolutely can be a crime, though. Atlantic had very little hope of proving their civil case here, so obviously they weren't even going to try for even harder-to-prove criminal charges.

Just like there's civil fraud and criminal fraud, there is both civil and criminal copyright infringement.

Unauthorized != illegal

[LionMage]

While the RIAA stipulated their assertion that the MP3 files are "unauthorized" copies of the music the defendant purchased on CDs, they never claim these copies are "illegal." It's a very precarious legal tightrope they're walking. If they claim those copies are illegal, that opens up a whole can of worms, and things might not go the way they'd like. So they claim those copies are "unauthorized" -- which is technically true, but doesn't address the issue of whether the defendant needed authorization.

Whether you need authorization or not depends on whether ripping those CDs into MP3 format is considered "fair use" or not. Although many geeks like to point to the Rio case against Diamond Multimedia as establishing that ripping CDs to space shift is a protected fair use, a careful reading of the decision will show that the judge in that case largely side-stepped the fair use question; rather, the judge focused on how the parts of a computer used to space-shift music were not covered by the Audio Home Recording Act, and therefore not subject to its restrictions. (The judge did say that the Rio was consistent with fair use provisions in copyright law, making an analogy to the Sony Betamax case, but that's as far as it went.) I found a pretty good article here [entrepreneur.com], reprinted from Federal Communications Law Journal. (The relevant section discussing the Rio case starts at the bottom of the first page and continues into page 2 [entrepreneur.com] with the following quote: "Because the court had no occasion to look at the Rio case from a fair use perspective, this Note examines the case as one of fair use to reach the same conclusion as the Ninth Circuit.")

We need more case law to establish this once and for all -- or else we need a piece of legislation that explicitly balances corporate and consumer copyright interests and defines what is considered "fair use."

Standard disclaimer: I am not a lawyer, and this is not legal advice. I'm merely stating personal observations and opinions.

Re:what bad English

[hyades1]

commentator /kmntetr/ [kom-uhn-tey-ter]

-noun

1.a person who discusses news, sports events, weather, or the like, as on television or radio.

2. a person who makes commentaries.

[Origin: 1350-1400 Middle English. interpreter, equiv. to comment to interpret (Latin: to think about, prepare, discuss, write, perh. freq. of commin; to devise; see comment) + L -tor -tor]

--Related forms

commentatorial [kuh-men-tuh-tawr-ee-uhl, -tohr-], adjective

commentatorially, adverb

Random House Unabridged Dictionary, © Random House, Inc. 2006.