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District Court Clarifies Exclusive Right to Distribution

By Stephanie Robinson

An Arizona district judge recently reconsidered its decision to grant summary judgment in favor of a group of recording companies in Atlantic Recording Corporation et al. v. Howell. The record companies accused Mr. and Mrs. Howell of using music-sharing software KaZaA to share music files in violation of the Copyright Act. The Howells, proceeding pro se, argued that KaZaA shared Mr. Howell?s private music folder without his authorization or knowledge. Mr. Howell denied placing music files in KaZaA?s shared folder, which allows public access to computer files. The district court originally granted summary judgment based on the record companies? evidence that Mr. Howell admitted he shared copyrighted materials through KaZaA. However, upon reconsideration, the court determined that Mr. Howell never admitted he disseminated the materials. The Copyright Act provides in section 106(3) that the owner of a copyright possesses, among other rights, the exclusive right to distribute copies of the copyrighted work. Although the Copyright Act does not define ?distribute,? the court followed precedent from other jurisdictions and determined that actual dissemination of either copies or phonorecords is required to demonstrate a violation of Section 106. The court concluded that unless a copy of the work is transferred ?by sale or other transfer of ownership, or by rental, lease, or lending,? there is no distribution. Judge Wake added that merely making available an unauthorized copy for public access is does not violate the copyright owner's exclusive right to distribution. Combined with other circumstantial evidence, such conduct may create liability, but it is insufficient on its own to result in a copyright violation. Although the record companies may ultimately prevail on their copyright claims, the court?s ruling makes it difficult for plaintiffs in Arizona to prevail merely by showing that copyrighted material was available on a file-sharing network without an additional showing that the defendant affirmatively disseminated the material. To view the court?s opinion, click here.

Full post as published by Business and Technology Law on May 14, 2008 (boomark / email).