Intellectual Property Law

Analysis: Despite Blogosphere Reports, RIAA Retains Legal Muscle Under Howell Decision

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The blogosphere is celebrating a recent Arizona federal judge's decision that, at first glance, seems to portend the death of the Recording Industry Association of America's thousands of pending copyright infringement lawsuits against Kazaa file-sharers.

But that's simply not the truth. In fact, the opposite might be true under Monday's ruling by U.S. District Judge Neil V. Wake.

Clearly, the ruling gutted a central tenet of the RIAA's file-sharing litigation: That simply making your music share-folder publicly available on Kazaa to other Kazaa users amounts to unlawful distribution of the music labels' copyrighted wares. A jury in Minnesota last year dinged Jammie Thomas $222,000 for having her share-folder open in the nation's only Kazaa file-sharing case to go to trial.

On Monday, however, Judge Wake ruled just the opposite in a separate case. He said that making available a Kazaa share-folder for others to pilfer copyrighted music from doesn't equate to infringement. But even if Wake's decision was adopted by the Supreme Court, that certainly would not end the RIAA's ongoing litigation campaign.

Instead, the decision might embolden it.

Most bloggers who covered the story left out a critical feature of the ruling in a case where a husband and wife, Jeffrey and Pamela Howell, are contesting an RIAA copyright lawsuit accusing them of sharing 54 songs via the Kazaa network.

In the first ruling of its kind, the judge said the 12 songs that RIAA investigators allegedly downloaded from the couple's share-folder could be used against them. Among other things, Wake said it was up to a jury to determine whether it was the Howell's share-folder.

"The record in this case does not conclusively indicate that Howell was responsible for making the 12 downloaded recordings publicly available," Wake wrote.

That's a substantial development, especially weighed in the "making available" context. Originally, it was believed to have been technologically impossible to prove that other Kazaa users were gaining unauthorized access to copyrighted music from the share-folder of somebody the RIAA was suing.

It was always assumed that the downloads from RIAA investigators employed by MediaSentry didn't count because the RIAA authorized these investigators to download the files from random Kazaa users' share folders -- a practice performed in almost every case.

But Judge Wake suggested it was mere myth to assume a copyright owner cannot infringe its own copyright.

Photo chazlarson

See Also:

• RIAA Says Andersen Class Action 'Is Long on Rhetoric' and ...
• Supreme Court Asked to Weigh RIAA Legal Fee Flap
• Judge Dismisses RIAA Racketeering Lawsuit
• Oklahoma State Surrenders File Sharers to RIAA
• RIAA Jury Finds Minnesota Woman Liable for Piracy, Awards $222000
• RIAA Juror: 'We Wanted to Send a Message'
• RIAA Defendant Maintains Innocence Day After Losing Court Battle

Full post as published by Threat Level on April 30, 2008 (boomark / email).