shouting loudly

Yesterday, a federal district court ruled that merely making copyrighted works available online does not constitute infringement.

The case, Atlantic v. Howell, is yet another battle in the RIAA’s legal war on music traders. Here is the heart of EFF’s summary of yesterday’s ruling:

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 defendants, Mr. and Mrs. Howell, are currently without counsel (as someone who grew up watching Gilligan’s Island reruns, I find this ironic), but the EFF are trying to help them find a lawyer.

The next step is likely a bench trial–neither side wanted a jury trial. Until last October, I would have thought this to be a mistake on the Howells’ part; surely a jury of one’s peers would be more sympathetic to the average person than most federal judges. But the Howells probably know that a jury in a similar case handed Jammie Thomas a bill for $222,000, a substantial rebuttal to the assumption that the jury would feel sympathy or apply modest penalties.