Court Says Putting Music In File-Sharing Folder Doesn't Violate Copyright

copyrightThe record industry lost a major court battle Tuesday, when a federal judge in Phoenix ruled that placing music in a Kazaa folder doesn't in itself infringe on the owners' copyright.

"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.

The Recording Industry Association of America criticized the ruling, calling it "a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues." The group said it's "considering all options going forward."

But Wake's opinion was cheered by some lawyers who represent defendants. "This is going to be the gold standard now," said attorney Ray Beckerman. He added that although the 17-page decision isn't binding on other courts, the sweeping, lucidly written ruling is likely to have an effect throughout the country because it's "the clearest, most comprehensive discussion of the issue."

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, MediaSentry, 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 MediaSentry had downloaded.

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.

As lawsuits brought by the record industry are now making their way through the courts, judges throughout the country have recently considered whether placing music in a shared file like Kazaa is itself sufficient to prove a violation of copyright law. A court in New York recently ruled in favor of the record industry, holding that placing tracks in a shared folder can violate copyright law because such activity constitutes publication and an offer to distribute.

And, in a recording industry lawsuit against single mother Jammie Thomas--the first such lawsuit to go to trial--federal district court judge Michael Davis in Duluth, Minn. ruled that the jury could find Thomas liable if it decided she uploaded tracks to Kazaa. That judge found that the record industry did not have to prove that anyone actually downloaded the tracks.

But federal district court judge Janet Bond Arterton in New Haven, Conn. recently ruled against the record labels on this issue. Quoting from a treatise on copyrights, she wrote, "without actual distribution of copies ... there is no violation (of) the distribution right." The labels recently filed an amended complaint in that case.

Judge Wake initially ruled in favor of the record industry and awarded it $40,500 or $750 for each of the 54 tracks, but later vacated that order. The civil rights group Electronic Frontier Foundation eventually got involved in the case and last month argued to Wake that he should deny the record industry's motion for summary judgment.

In the last five years, the record industry has targeted an estimated 26,000 people for alleged piracy. Many have paid between $3,000 and $5,000 to settle with the industry.

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