US court rules that ‘making available’ files for downloading is infringement; Atlantic v Howell

October 2007


A US District Judge has ruled that making recordings available on a peer-2-peer file swapping network constitutes infringement of copyright. This case involved a defendant called Jeffrey Howell who had his home IP address turned over to the court by Cox Communications, the Howells’ broadband provider. A number of members f the Recording Industry Association of America (RIAA) then hired Media Sentry Services to look into the contents of the Howell’s shared folder on tier two computers. There the firm found 2,329 MP3 tracks, many of which were later identified as works copyrighted by the plaintiff record labels. Mr. Howell’s defences were that (1) he was at work at the time MediaSentry detected his shared folder at home, so he wasn’t really the person distributing the files at the time; (2) he legally purchased all the tracks in that shared folder; (3) those files had originally been in a non-shared folder, but some hacker probably found a way of moving them into the shared folder. None of these succeeded and Judge Neil Wake held that under federal law, Judge Wake wrote, “Distribution of copyrighted material need not involve a physical transfer.” Then citing US code, he added, “‘[T]he owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works’ in violation of copyright law.” The judge cited previous rulings where Napster users were found guilty of infringement by virtue of having installed Napster and having songs in their shared folder. He then said Kazaa was basically the same: “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.” Howell contended thar as he ‘owned’ the tracks then them on his computer constituted fair use. Judge Wale held that “The question is not whether Howell owned legitimate copies of some of the sound recordings on CD,” Judge Wake concluded, “but instead whether he distributed copies of the recordings without authorization. Howell’s right to use for personal enjoyment copyrighted works on CDs he purchased does not confer a right to distribute those works to others without Plaintiffs’ authorization.” Mr. Howell has been fined $40,850 in penalties and court costs, which will probably be the end of it unless he files an appeal.

No Comments

Comments are closed.