Friday, August 24, 2007

Pro Se Defendant Loses to RIAA in Atlantic v. Howell in Arizona, Judge Holds "Making Available" is a "Distribution"

In Atlantic v. Howell, a case against a pro se defendant in Arizona, the judge ruled in favor the RIAA and concluded that "making available" is in and of itself a copyright infringement.

This is the second time of which we are aware in which, in the context of a summary judgment motion against a pro se litigant, a judge has stated that merely "making available" is in and of itself a copyright infringement. The first was Motown v. DePietro in Philadelphia, where the RIAA's summary judgment motion was nevertheless denied.

August 24, 2007, Order Granting Summary Judgment to Plaintiffs*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica
"Digital Daily" on "All Things Digital"
Patry Copyright Blog (Comment on DePietro case)

Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


AMD FanBoi said...

Okay, where does this go next?

Can the Defendant appeal the award amount of statutory damages as unconstitutional?

Can the Defendant appeal on the basis that the judge has improperly extended copyright law by equating "making available" to distribution of phono recordings?

In regard to the injunction, are his recordings "unauthorized" if he owns the compact discs they were ripped from?

Arizona has a state constitutional provision guaranteeing a jury trial. Can he claim that his state constitutional rights were violated since he was never granted a trial?

Is this judge Neil V. Wake horribly wrong and clueless here, or did the Defendant make some basic mistake, aside from attempting this as pro se?

- - -

And while we're on the topic of your blog, and the way the RIAA attempts to (mis)use it to their advantage, can you copyright everything you put up, and extend an individual copyright to each poster such that the RIAA cannot use any of it without permission and full payment of rights fees – very expensive rights fees – first?

raybeckerman said...

Dear AMD

1. I don't know enough about the case to know what he can and can't appeal from. That is a very technical question that requires a full review of the record.

2. In your last paragraph you sound a little like the RIAA. You've been exposed to their warped thinking for too long. Get some fresh air.

Alter_Fritz said...

with all due respect, how incompetent is this judge Wake?
He claims that "There is no genuine issue of material fact as to the second element of the recording
companies’ claim of direct infringement via distribution. Howell admitted in his deposition
that the sound recordings were being distributed from his Kazaa shared folder
" by quoting 2 question/answer sets from a deposition.
But defendant did not admit that there was distribution! He was questioned if "[some songfilenames identified in screenshots] were seen by plaintiffs as being shared by your Kazaa account?"
He did NOT said he admitted that he had distributed copyrighted songs from plaintiffs to the public.!
Even me with my broken english knowledge understands the question and answer.

In my irrelevant option this judge Wake is not very awake in his resoning when he claims that defendant admitted that he had distributed files while he clearly did not admitted such a thing! (at least not in those parts that the judge quoted in his order).

AMD FanBoi said...


Re: my last paragraph (and yes it's late on Friday) is simply an attempt to use the RIAA's favorite weapons against them. They take stuff from your blog without permission and attempt to use it against you and other weak Defendants. If everyone owns what they create, then the RIAA is stealing every bit as much as those they rail against and sue to a tortious extreme. Good for the goose is good for the gander, and all that.

Virtualchoirboy said...

AMD, I can certainly understand your sentiment, but I have to side with Ray on this one. Take a minute and step back to think about what you're saying. Essentially, you're asking Ray to add Copyright messages to his posts and then, in violation of the intent of Copyright, prevent fair use of his posts?

To be honest, I relish that the RIAA is taking posts from here. That in turn can make this a court recognized reference, including all of our posts and opinions. In the long run, I think the RIAA is hurting themselves much more than helping.

Of course, that's just my opinion and worth exactly what you pay for it... :-)

Sanji Himura said...

I am not a lawyer, but I do wish to reffer the judge in this case to the complaint filed by Catherine Lewan in Lewan v Shaman Networks. It says, explaining on how Kazaa works:

[It designed its software,]in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so.

The Sharman Defendants marketed KaZaA as the P2P service that allowed individuals to share files.

The Sharman Defendants deceptively marketed the KaZaA Product as allowing ‘free’ downloads.

The Sharman Defendants deceptively marketed the use of the KaZaA Product as legal.

The Sharman Defendants deceptively knew that most users of the KaZaA Product would use the KaZaA Product to catalog and store digital copies of copyrighted sound recordings and films.

The Sharman Defendants encouraged, invited and solicited such conduct from the public, its customers, and users of the KaZaA Product.

To use the KaZaA Product, an individual user would download the KaZaA software and install it on their computer.

The user could then use the KaZaA Product to catalog files on the individual’s computer. These files would be contained within a ’share folder’.

To increase the sound recordings and films available on the KaZaA network, the Sharman Defendants designed the KaZaA software to create the shared folder and make the share folder accessible to anyone using the KaZaA software on the KaZaA network. They did so such that neither the KaZaA software nor the individual user’s computer would inform the user that this had occurred.

In other words, the Sharman Defendants designed the KaZaA software to share the contents of the individual users ’share folder’ without letting the user of the KaZaA software know that he or she made such content available to others on the KaZaA network.

Another point of interest:

The Sharman defendants designed the KaZaA software to install a number of additional programmes (’spyware’) on an individual user’s computer for nefarious purposes. They did so such that neither the KaZaA software nor the individual user’s computer would inform the user had this had occurred.

The spyware employed by the KaZaA software affected computers adversely.

The Sharman Defendants designed the KaZaA software to be nearly impossible to fully eradicate from a user’s computer. Consequently, an individual’s shared folder would remain accessible to the KaZaA Network after the KaZaA software had been removed from the individual’s computer.

By automatically sharing files in the shared folder, KaZaA exposed its users to claims of copyright infringement by making such files accessible to other users of the KaZaA network to download.

The Sharman Defendants knew and continue to know that the use of the KaZaA Product exposes its users to claims of copyright infringement.

raybeckerman said...

Perhaps even more importantly, the Court should have read the RIAA's own admissions at the November 2004 Federal Trade Commission hearings, set forth as exhibit A to the reply affidavit of Zi Mei in Atlantic v. Does 1-25.