Copyright Law

RIAA summary judgment motion denied in Atlantic v. Howell; RIAA 'making available' theory & Judge Karas 'offer to distribute' theory rejected

By Ty Rogers and Ray Beckerman

In Atlantic v. Howell, the Phoenix, Arizona, case in which the defendant has been representing himself, the Court has denied the RIAA's summary judgment motion.

The 17-page decision:

-rejected the RIAA's "making available" theory (in agreement with Atlantic v. Brennan, Elektra v. Brennan, and London-Sire v. Doe 1), noting that "Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place";

-rejected the "offer to distribute" theory suggested to the RIAA by Judge Karas in Elektra v. Barker;

-rejected the RIAA's theory, accepted by Judge Karas, that "distribution" and "publication" are simply synonyms under the Copyright Act (in agreement with London-Sire v. Doe 1 and disagreement with Elektra v. Barker);

-held the RIAA's evidence inconclusive as to whether the defendant was the person who actually put the files in a 'shared files folder'; and

-held the RIAA's evidence inconclusive as to whether the defendant could be held liable under a "secondary liability" theory.

This is the Arizona case in which (a) the Court initially ruled in the RIAA's favor, (b) after receiving a "reconsideration" motion from the self-represented defendant, the Court recalled and vacated its earlier decision, (c) the Court asked for supplemental briefs, responding to -- among other things -- the question of whether Mr. Howell's mp3 files, copied from his cd's, were "unlawful", and the RIAA responded "yes", (d) the Electronic Frontier Foundation filed an amicus curiae brief on Mr. Howell's behalf, and (e) Fred Von Lohmann of the EFF participated in the oral argument.

April 29, 2008, Decision, Denying RIAA Motion for Summary Judgment*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property

Full post as published by Recording Industry vs The People on April 29, 2008 (boomark / email).