• by Wendy Davis  @wendyndavis, January 14, 2008

The digital rights group Electronic Frontier Foundation has gotten involved in a pending lawsuit by the recording industry, arguing that uploading music files isn't enough to constitute infringement unless there's also evidence that people downloaded those files.

"An infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work," the EFF wrote in a brief filed Friday in federal district court in Arizona in the RIAA's lawsuit against part-time cab driver Jeffrey Howell and his wife Pamela.

The record industry maintains that uploading music files to Kazaa is sufficient to prove copyright infringement. "It is ... undisputed that the whole purpose of Kazaa is to share files with other users and that the defendant intended this purpose when he downloaded Kazaa to his computer," the RIAA argued in its brief, filed late last year.

This unresolved question is turning out to play a pivotal role in the ongoing lawsuits filed by the RIAA against alleged file-sharers. Lawyers have said it's the key issue for appeal in the case against Jammie Thomas, a single mother who was ordered to pay $220,000 by a jury last year, after the judge ruled that uploading files could in and of itself constitute a violation of the owner's copyright.

The judge in that case initially ruled the opposite way, and said he would instruct the jury that making music files available on a peer-to-peer network does not violate copyright owners' rights unless the files are then transferred. But the judge changed his mind after further argument by the RIAA.

The RIAA has sued more than 20,000 people in the last several years--but only a handful have so far proceeded to trial, so there's little precedent on this precise issue.

The record industry sued Howell in 2006, after an investigator allegedly saw that he had uploaded files to Kazaa. Howell, who represented himself, argued that the files on Kazaa were for his private use. Federal district court judge Neil Wake initially ruled in favor of the record companies and fined Howell around $40,000. Wake later vacated that order and asked for further argument.