• by Wendy Davis  @wendyndavis, April 2, 2008

A federal district court judge has sided with the record industry in one of the most hotly contested issues to come up in copyright infringement cases--whether people can be sued just for making tracks available to Kazaa users.

In the long-awaited ruling, judge Kenneth Karas in New York declined to dismiss a record industry lawsuit against Denise Barker and ruled that the case could proceed to trial. In his 25-page opinion, Karas held that placing tracks in a shared folder can violate copyright law because such activity constitutes publication and an offer to distribute.

Defense attorneys say that if the decision is followed by other courts, it could mean that any Web users who have placed copyrighted works in their computers' shared music files could be liable for piracy, regardless of whether those works were downloaded by others.

"It's troubling because it can capture the person who has only done lawful things with music on his or her hard drive, and has never contributed to the actual infringement because no one has ever tried to copy one of those files," said Wendy Seltzer, one of the lawyers who argued the case on behalf of the Electronic Frontier Foundation. That group filed a friend-of-the-court brief in the case.

Fred von Lohmann, a senior staff attorney with the EFF, added that the case was likely to give the record industry a boost in its campaign to sue individual users. "They got the heart of what they wanted, which is the idea that having a song in your shared folder is itself an infringement," he said.

Not surprisingly, the Recording Industry Association of America praised the decision. "As we expected, the court rejected the defendant's motion to dismiss," said Cara Duckworth, RIAA spokesperson. "The court also agreed with the record companies that merely offering to distribute copies for the purposes of further distribution--even without an actual dissemination--can violate the distribution right."

Barker's attorney, Ray Beckerman--who is also known for authoring the opinionated defense-oriented blog RecordingIndustryvsPeople--said he is considering whether to ask the Second Circuit to hear an appeal of the issue. That move would be unusual at this stage, because federal appellate courts don't normally consider appeals until there has been a final resolution at trial.

As lawsuits by the RIAA are making their way through the trial courts, the question of whether simply placing tracks in Kazaa constitutes piracy is coming up more frequently. In last year's case against 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 RIAA 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 RIAA 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 RIAA filed a motion for reconsideration in that case.