• by Wendy Davis  @wendyndavis, March 5, 2008

In a closely watched case, the digital rights group Electronic Frontier Foundation will argue to a federal judge today that a man who allegedly uploaded tracks to Kazaa shouldn't be held liable for copyright infringement unless the record industry can prove that other users have downloaded those tracks.

"Here, there's no evidence that the actual infringing act ever happened," EFF lawyer Fred von Lohmann said.

The record industry says that making tracks available for distribution by uploading them to a file-sharing service like Kazaa is sufficient to prove liability because, it argues, "the whole purpose of Kazaa is to share files with other users." The RIAA is now asking the federal district court in Arizona to rule in its favor without conducting a trial.

The RIAA initially sued Jeffrey Howell and his wife, Pamela, in 2006, after an investigator allegedly saw that he had uploaded 54 files to Kazaa. Representing himself, Howell argued that he ripped the CDs to his computer, but didn't intend to share them with other users. Federal district court judge Neil Wake initially ruled in favor of the record companies and fined Howell around $40,500 (the statutory minimum of $750 per track), but later vacated that order and asked for further argument. The EFF got involved in the case in January.

A ruling against the RIAA on this issue would strike a blow to the record industry's litigation strategy of suing individual uploaders for copyright infringement. Since 2003, the RIAA has sued, or threatened to sue, more than 20,000 people throughout the country for alleged piracy based on the theory that they uploaded tracks to file-sharing sites.

But defense lawyers say that the RIAA can't prove that anyone -- other than its own investigators -- have downloaded the tracks. In the Howell case, the RIAA's investigators allegedly downloaded 11 tracks uploaded by Howell, and found that 43 others that they didn't download.

The vast majority of the people targeted by the RIAA have settled, so only a handful of judges have considered the legal question of whether the RIAA's proof is sufficient.

Last month, federal district court judge Janet Bond Arterton in Connecticut ruled against the RIAA on this point. Quoting a treatise on copyrights, she wrote, "without actual distribution of copies ... there is no violation [of] the distribution right."

The RIAA last week filed a motion for reconsideration in that case.

The same issue came up in the Jammie Thomas trial -- the first lawsuit against a consumer to go to a jury verdict. There, the judge initially said he would instruct the jury that making files available on a peer-to-peer network doesn't violate copyright law unless the files are later transferred. But he changed his mind after further argument by the RIAA and instructed the jury that simply making the files available was sufficient to prove infringement. The jury ruled against Thomas and ordered her to pay $220,000 to the record labels.