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Judge sides with RIAA: file-sharing apps lead to direct infringement
By Eric Bangeman | Published: August 27, 2007 - 11:08AM CT

One of the arguments the RIAA has made in every file-sharing lawsuit it has ever filed is that making a song available on a P2P network is the same as distributing it, therefore violating the record label's copyright on the song. So far, judges have been favorable to the RIAA's interpretation of the Copyright Act, with the latest victory for the RIAA coming in Atlantic v. Howell.

Pamela and Jeffrey Howell were sued by the RIAA in 2006 for copyright infringement. The Howells decided to defend themselves against the charges and submitted a remarkably short answer to the RIAA's complaint. In it, the Howells argued that their file-sharing program was "not set up to share" and that the files found by Media Sentry were "for private use" and "for transfer to portable devices, that is legal for 'fair use.'" Their three-paragraph response was miniscule in comparison to those filed by file-sharing defendants with professional representation.

In his summary judgment, Judge Neil V. Wake dismissed the Howell's arguments and handed the RIAA $40,500 in statutory damages, $350 in court costs, and a permanent injunction against future copyright infringement by the Howells. "Several cases suggest that Kazaa users commit direct infringement by employing the Kazaa program to make their collections of copyrighted sound recordings available to all other Kazaa users," wrote Judge Wake, citing three other cases as well as Howell's deposition in which he admitted ownership of the Kazaa account in question.

The RIAA lost no time in bringing the decision in Atlantic v. Howell to the attention of the judges in Warner v. Cassin and Elektra v. Barker, according to copyright attorney Ray Beckerman, who is the defense counsel in both cases. As we noted last week, both of these cases could be seminal for file-sharing litigation since the judges have heard arguments from both sides and are willing to rule specifically on the question of whether making a file available on KaZaA does indeed constitute distribution. In both cases, Beckerman argues that the RIAA's complaints show no "instance or example of 'downloading' a recording; any instance or example of 'distributing' a recording; any instance or example of 'making [a recording] available';... or what law would support a claim for 'making [a recording] available.'"

Beckerman also finds fault with Judge Wake's ruling, arguing in a letter that the decision misstates the findings of other cases and that the judge made no explanation of "how 'making available' could possibly fulfill the elements" spelled out in the Copyright Act.

So far, the RIAA is batting 1.000 when it comes to the "making available" argument. In six of the seven cases decided, the judges failed to actually rule on the issue, saying that the RIAA could move ahead with its lawsuits because of "continuing infringement." The Howell case is the seventh.

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A New York case testing the same theory is still pending.

If the defendants' claim is correct -- that their Kazaa program was not set up to share (I have never used the program, so I don't know what options are available, is this a credible claim?) -- then in fact nothing was made available. Only a list of what they had on their hard drive was available. Certainly the judge does not mean to imply that making a list of recordings you have is an infringement.

If the Howells have accurately presented their case, then no infringement was even possible. Therefore whether making available is infringement is a moot point, since nothing was made available -- even potentially -- to other p2p users, except a list of song titles.

If this is the state of affairs, then the EFF should really get involved in an appeal. I would donate to fund that appeal, because on the face of it this sounds outrageous.

Do I misunderstand something here?

Many file sharing programs arrange, by default, for a folder named "shared" to be placed on the user's hard drive, in which downloaded content is automatically made available in uploading mode to other users. To me, this is the feature that's proving to be the undoing of the P2P programs out there. They should have informed the user about this and not put downloaded files by default into an automatic available status for others to download. Addtionally, file sharing programs such as LimeWire allow a certain amount of browsing of another user's hard drive (unless they have specifically denied this function to be active); and these HD files are available for downloading.

Hope this information helps.

A long time ago I used KazaaLite, and you could specify which directories were shared directories. Of course, if you put anything in those directories, it means you were "making available." So I don't know if what the Howells claim is correct, or whether they didn't know exactly what they were doing when they set up the program. If I didn't want to share a file I'd downloaded, I would immediately move it to an unshared directory. However, it has been so long since I used p2p for music, I have no idea how the current programs operate.

What you've written is true.
The gripe has been that most newbies would probably not have been aware that they had a choice (and, otherwise, by default, the "choice" was designed to be made automatically for them that their downloads went into a shared folder in uploaded mode -- the contents being accessible by others using the P2P program). Sad.
On the other hand, if they hadn't been coveting RIAA stuff in the first place . . .

i use limewire but not for music or movies, just porn but i have gone through the entire options and disabled every possible way that the program might try to share on top of that as soon as its finished i move it to another directory plus when im done i deleate all the cache and backup files plus the spam file which also keeps track of the files you download

Unfortunately -- as a computer tech I've noticed that most inexperienced computer uses make a hell of a lot of assumptions even if in most cases they're told that this is a bad idea.

A good majority of users make these assumptions:

"My friend uses it, so it's safe"

"I wasn't told I needed to check the configuration, so I'm leaving the settings at their defaults"

"I paid for this program, so it can't harm my computer"

"If it doesn't do something by default, then this means it can't do it at all"

"The Internet is just images and video on a screen, so nothing on it can hurt me or my computer"

Most people these days want everything spoon fed to them and done for them. They don't want to think, rationalize or use common sense.

It is unfortunate that entire Industries must suffer for their stupidity because they say ignorance of the law is no excuse for breaking it -- but I think that line is just one huge load of crap.

When a politician or someone in charge of something important makes a far bigger fuckup than not knowing a program on his PC was doing something that it shouldn't be and they expect us to all just accept the "oh well it was just an accident and I'm sorry" line and he feels he shouldn't suffer any consequences for it, because it was done by accident!

But when an individual does this -- specifically -- an individual that isn't rich, powerful and well connected -- they act as if this person is next of kin to the anti-christ and throw the book at them.

So the fault is two fold. Idiots on our level that lack common sense making it hard for those of us who have a good supply of it -- and rich pricks who succeed in exploiting and manipulating legislation because of these idiots and because none of us have millions of dollars to spend to have the priveledge of proving that they're full of it.

So stupid people are one problem. The other is that you are not innocent until proven guilty -- you are guilty until you are proven innocent and / or are not rich enough and well connected enough to be able to defend yourself.

This also allows the guilty to be proclaimed as victims because they have the funding to fight court battles indefinitely.

-Dave

...the Howells argued that their file-sharing program was "not set up to share" and...

This is a perfect example of the ill-fated "I did it but..." defense, which is always a loser in court.

Stick with "File sharing? Prove it."

" Stick with "File sharing? Prove it. "

Precisely.
Admit nothing.

In too many of these cases, there is
nothing to admit to, however.
The point isn't whether or not you're
guilty, it's whether you have the funds
to fight back.

despite how you are supposed to be Innocent until proven guilty, in the recent past few decades its been just the opposite unless you have money.

Gee I wonder how much the RIAA paid the judge to get the ruling they wanted?