[Infowarrior] - Court Rejects RIAA "Making Available" Theory

[Richard Forno]

April 29th, 2008
Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available"
Theory
Posted by Fred von Lohmann

http://www.eff.org/deeplinks/2008/04/big-victory-atlantic-v-howell-court-rej
ects-making

The district court in Atlantic v. Howell today denied the recording
industry's motion for summary judgment against Mr. and Mrs. Howell, two
lawyer-less defendants caught up in RIAA's litigation campaign against
file-sharers. EFF filed an amicus brief on their behalf in the case and
participated in oral argument.

In its order, the court delivers the most decisive rejection yet of the
recording industry's "making available" theory of infringement (i.e., if
someone could have downloaded it from you, you've violated copyright, even
if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1,
the court concludes that "[t]he general rule, supported by the great weight
of authority, is that infringement of the distribution right requires an
actual dissemination of either copies or phonorecords." The court goes on to
conclude that downloads by the recording industry's own investigator,
MediaSentry, are not enough to establish distribution, at least based on the
facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa
software was sharing his entire hard drive). Finally, the court also
suggests that P2P file-sharing may not implicate the distribution right at
all, reasoning that what is really going on is a series of reproductions.

The likely next stop for Mr. and Mrs. Howell is a bench trial (neither party
asked for a jury trial) in Phoenix, probably in September. EFF will continue
to try to find them counsel.