Arizona court takes a narrow view on P2P file swapping (Atlantic v Howell)

June 2008

Internet, record labels

The CMU Daily reports on an interesting technicality was raised in a US court hearing relating to one of the Record Industry Association Of America’s P2P lawsuits this week. It’s a technicality that has been raised before, but it was the court’s ruling on the matter that was interesting, because in theory it reduces the scope of the RIAA’s lawsuits a little. The case was against Pamela and Jeffrey Howell who are accused of illegally sharing music via the Kazaa file sharing network. The labels are suing them for copyright infringement.

The technicality is as to whether merely placing music files into a Kazaa folder on your PC in itself amounts to copyright infringement. Generally speaking courts have been willing to say “yes” in the past – so that if a defendant puts music in a Kazaa folder, and a label’s agent is to download a track or two from it, then infringement has been assumed in relation to all tracks put in that folder. However, the court in Arizona hearing the Howell’s case wasn’t keen to extend the definition of infringement that far. It said that a copyright was only infringed if there was “actual dissemination of copies or phonorecords” – ie infringement took place when someone downloaded a track from the Kazaa folder, but not when the tracks were first put into the folder. It’s a subtle distinction, though one that’s not without ramifications. The RIAA’s agents had downloaded 12 files from the Howells’ Kazaa folder, but were suing for infringement on all 54 tracks they found in the folder. Given their narrow definition of infringement, that meant that in the eyes of the court there was only evidence of infringement on the 12 tracks the RIAA had themselves accessed, nothing could be proven on the other 42. Of course moving forward, if this ruling was accepted elsewhere (and it’s only really relevant for other Arizona cases) the RIAA could overcome it by always downloading a copy of every track being shared by its P2P targets, though that does extend their workload somewhat, and could be problematic for lawsuits pending where all tracks have not been specifically accessed. Responding to the ruling, the RIAA said they thought the Arizona courts had failed to follow precedent set in other US courts on this matter, and that as a result they were reviewing their options. Their statement read: “This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues. We are currently considering all options going forward”.

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