Tuesday, April 29, 2008

RIAA summary judgment motion denied in Atlantic v. Howell; RIAA 'making available' theory & Judge Karas 'offer to distribute' theory rejected

In Atlantic v. Howell, the Phoenix, Arizona, case in which the defendant has been representing himself, the Court has denied the RIAA's summary judgment motion.

The 17-page decision:

-rejected the RIAA's "making available" theory (in agreement with Atlantic v. Brennan, Elektra v. Brennan, and London-Sire v. Doe 1), noting 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";

-rejected the "offer to distribute" theory suggested to the RIAA by Judge Karas in Elektra v. Barker;

-rejected the RIAA's theory, accepted by Judge Karas, that "distribution" and "publication" are simply synonyms under the Copyright Act (in agreement with London-Sire v. Doe 1 and disagreement with Elektra v. Barker);

-held the RIAA's evidence inconclusive as to whether the defendant was the person who actually put the files in a 'shared files folder'; and

-held the RIAA's evidence inconclusive as to whether the defendant could be held liable under a "secondary liability" theory.

This is the Arizona case in which (a) the Court initially ruled in the RIAA's favor, (b) after receiving a "reconsideration" motion from the self-represented defendant, the Court recalled and vacated its earlier decision, (c) the Court asked for supplemental briefs, responding to -- among other things -- the question of whether Mr. Howell's mp3 files, copied from his cd's, were "unlawful", and the RIAA responded "yes", (d) the Electronic Frontier Foundation filed an amicus curiae brief on Mr. Howell's behalf, and (e) Fred Von Lohmann of the EFF participated in the oral argument.

April 29, 2008, Decision, Denying RIAA Motion for Summary Judgment* (2008 ILRWeb (P&F) 1665)

* Document published online at Internet Law & Regulation

Commentary & discussion:

Electronic Frontier Foundation
Ars Technica
p2pnet.net (4/30/08)
C/Net News
The Register
Heise Online (German)
Online Media Daily
PC World
Patry Copyright Blog
Tech News World
ZDNet (4/30/08)
TipAdept Dot Com
The Inquirer
Wired (Eliot Van Buskirk)
Wired (David Kravets)
The Consumerist
p2pnet.net (5/1/08)
ZeroPaid (5/1/08)
eCommerce Times
La Shawn Barber's Corner
Top Tech News
LA Times
Daily Tech
Inside Music Media
Interiuris (Spanish)


Keywords: digital copyright law online internet 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 intellectual property


Anonymous said...


Clearly a judge who understands both the technology, law and separation of powers doctrine. Judge Wake discusses the issues, and realizes the RIAA has a hard road: they'd like to stop file sharing, but there is no law against it.

Finally, a Judge realizes that the person downloading from a shared folder is the one doing the copying, not the person who has the account (much like a Judge who has a law library and photocopier is not the one doing the duplication).

Additionally, Judge Wake understands the copyright law which shows that actual dissemination of copies must take place to show distribution - without that key evidence, there's no violation of the distribution right.

The RIAA can't afford too many more of these cases on the record, so I imagine there will be many (lengthy) appeals.


Anonymous said...

Good to see a decision like this! I'm glad the court here is so sensible and knowledgeable!

Of course, aren't they going after the EFF now? I understand they've filed a SLAPP suit in connection with other litigation.

Justin Olbrantz (Quantam) said...

The SLAPP suit is related to a non-file-sharing case.

Anonymous said...

A landmark ruling. It's been hanging in the air for a while but it's good to it in writing.


Anonymous said...

From the decision, Page 2...

"They attached seven pages of their April 4, 2007 deposition of Howell. Their
briefs maintained that Howell admitted at the deposition that “all of the sound recordings
[at issue] were in the KaZaA shared folder that he created on his computer,”...."


"The portion of the deposition that the recording companies provided appeared to support
their allegation"


"Additional portions of the
Howell deposition later submitted by the recording companies showed that Howell had
not, in fact, admitted to placing the sound recordings in the KaZaA shared folder"

Are there any actions that can be taken against attorneys who, if not flat out lying to the court, are distorting/bending the truth?

raybeckerman said...

I want to take a minute for some much deserved thank you's.

Mr. Howell. Thank you for fighting this fight, and standing up for principle. I know how tough it is do this stuff without a lawyer, but you have shown real grit and fortitude and courage. I commend you for bringing the key authorities to Judge Wake's attention.

To the EFF and Fred Von Lohmann, I thank you for going to bat on behalf of Mr. Howell, and all those other good people he represents. Your amicus curiae brief was superb. And your taking time from your busy schedule to fly to Phoenix and participate in the oral argument was above and beyond.

And of course all of us, even the RIAA lawyers, owe a debt of gratitude to Judge Wake for his scholarship, his attention to detail, and his fairness and open mindedness.

All in all, a good day for Arizona, and a good day for the rule of law.

Anonymous said...

It's true that the SLAPP is related to a non-filesharing case, but it's not like the issues aren't related. The RIAA obviously isn't happy with help from amicus briefs like the one in this case, and they're on the defensive in that DMCA case because they're trying to expand copyright to control everything they can.

I really want to see the documents on that one, but I don't have a Pacer account and the EFF hasn't put up those documents yet. What pattern of conduct do you suppose Universal is alleging to paint the EFF as the bad guy?

Scott said...

This is good news.

One possibly useful aside: Judge Wake recognized, in passing, that MediaSentry was in fact "...the recording companies’ private investigator..." (page 1 line 21). I hope the court's acknowledgment of this fact will help put to rest the RIAA's charade that MediaSentry is anything other than that.

Anonymous said...

The judge writes (quotes, from somewhere) "the investigator's assignment was part of [the recording companies'] attempt to stop [Howell's] infringement". I am confused. The job of MediaSentry is to identify file sharers. It does or attempts to do by downloading files and is currently employed by the RIAA for just this reason. What more does it take before MediaSentry's downloads are authorized, in the eyes of the court?

Also, if it is determined that file sharers (uploaders) using Kazaa cannot be primary infringers, only secondary infringers, and the only substantive evidence of primary infringement is MediaSentry, does that in any way benefit the secondary infringers, legally?


Alter_Fritz said...

ZDFnet wants me to register with an armada of questions just that I can point the Author of that piece there to his error in his text.

In case someone is registered and can post there, please c+p that one will you?!


Richard Koman
you wrote
"the Howells installed Kazaa, they used it download some “illegal” music, they also ripped some of their CDs onto their computer hard drive."

Thats not correct according to Mr. Howell
Mr. Howell says he installed KazaA for downloading amateur pr0n beside other stuff but not for downloading songs.
He claims that the songs on the HDD that MediaSentry where able to "see" and download where ripped from his own CDs and that he had no intention (note that intention is not a prerequisite under US copyrightlaw to be responsible for infringenent though!) to share his ripped songs with others and that they were in his "my music folder" and not in the "KazaA share folder".



thanks guys!

Anonymous said...

Interestingly enough, the judge in his decision also rejects the claim advanced by the EFF amicus brief that distribution to an authorized private investigator does not constitute infringement, which is the most consistent argument I've seen in reading EFF amicus briefs before. He cites no case law precedent for such a claim.

Back to the drawing board, I suppose. But thanks to the EFF for providing support to the Howells, even if some of your efforts proved to be in vain.

Anonymous said...

Looks to me that if MediaSentry was not an authorized agent of the Recording Industry, just think how big of Judgment the Record companies could get for all those "Unauthorized" evidence downloads.

Of course if I were MediaSentry, Id be thinking long and hard about getting written authority from the record companies before downloading any more songs. Of course, the recording industry is not going to want to grant such permission because it would mean the songs cannot be used as evidence of infringement.

Sorta puts them between a rock and a hard place. Refuse and your investigators quit, allow and see those songs refused into evidence.....


Alter_Fritz said...

Albert seeing it from THAT standpoint is really interesting!


Me starts to wonder if Judge Wake deliberately mentioned it that way in his order because he might have had a similar thought in his mind.

Given his reasoning that a person who has a song in his shared folder could be at most contributory liable because it isn't him who does the copying but the (nonauthorised) Investigator is the infringer. gives the whole sheme a totally new view!
That non other judge spelled that out before -- It's simply a genius reasoning IMO.

So either it's MediaSentry that is now "sexually penetrated" for infringement on a gigantic scale or it's the labels for not suing them first before going after possibly only contributory liable infringers from their driftnet fishing! Thats a genius situation from a logical standpoint I guess.
I must commend Judge Wake for that decission!

Anonymous said...

The same idea as Albert's, but expressed a little differently. (Maybe the problem is that various judges haven't found the right perspective on this issue.)

Of course the RIAA won't be going after MediaSentry for copyright infringement, but supposing they did so, we know that MediaSentry would claim they were the RIAA's agent in this affair. In that case, I imagine there is precedent for the defense ... perhaps this is what the judge wanted to see from EFF.