E-Commerce Times 04/30/08

Federal Court Dents RIAA Strategy Against File-Sharers

By Erika Morphy and assisted by Jonathan Bick (WolfBlock)

Though it has an impressive record of legal victories against individuals who illegally distribute copyrighted music on the Internet through file-sharing technology, the RIAA stumbles once in a while. Its latest setback may force the group to rethink its tactics, but it's no get-out-of-jail card for people caught in its sights.

A federal judge's ruling against the Recording Industry Association of America not only represents a setback for the litigious trade group in one particular intellectual property case, but also opens a Pandora's box of technicalities that could mean a few speed bumps ahead for its legal steamroller.

The case in question is Atlantic v. Howell.

In 2006, the RIAA sued husband and wife Jeffrey and Pamela Howell for copyright infringement, alleging that the couple had made protected music available for peer-to-peer file-sharing through Kazaa.

The RIAA asked U.S. District Judge Neil V. Wake for a summary judgment, citing the presence of the content in a shared folder. Jeffrey Howell argued that he had not placed the music into the shared folder, and that it was automatically shunted there by the system.

Wake denied the RIAA's request on grounds that it was indeed unclear whether the husband or wife had put the content in the folder. Further, he left open the question of whether its presence there constituted copyright infringement. In short, he rejected the RIAA's position that the act of making copyrighted content available for unlawful distribution constitutes infringement.
One Small Victory

For anyone dismayed by the RIAA's tactics in bringing file-sharers to heel over the last several years, the ruling qualifies as a clear victory. The finding has the potential to severely neutralize one of the RIAA's key arguments and prosecutorial tools.
To be sure, the "making available" theory has already been rejected by several courts around the country, Jonathan D. Bick, counsel in the intellectual property/information technology practice group of WolfBlock, told the E-Commerce Times.
In the Massachusetts case London-Sire v. Doe 1, the court rejected the argument, he said.

In both Atlantic v. Brennan and Interscope v. Rodriguez, judges ruled that the RIAA's entire complaint, including the "making available" theory, was insufficient to prove copyright infringement.

"About two months ago, the District of Connecticut court repudiated the RIAA's complaint on grounds that even 'actual' distribution and 'actual' reproduction had been insufficiently pled," Bick said.

The Howell decision definitely moves the "making available" argument into the loser column for the RIAA -- until or unless the U.S. Supreme Court or Congress says otherwise, Douglas Panzer, an intellectual property attorney at Caesar, Rivise, Bernstein, Cohen & Pokotilow, told the E-Commerce Times.

The Howells are not home free though; they are headed for trial, where they could well be found guilty.
Had there been no downloads of music from the Howells' shared folder, they would be out of the woods. As it was, MediaSentry -- a company that the RIAA pays to scour the Internet for copyrighted music online -- downloaded their content.
While some courts have rejected the argument that making copyrighted content available constitutes infringement, that only provides limited protection to P2P users, Panzer explained. "If someone in fact does download the content, they could be found guilty of distribution."

MediaSentry's role is also at issue, though. "One argument is that because it was hired by the RIAA, it is its agent -- and therefore it is not possible for it to infringe RIAA's content," said Panzer.
If the RIAA could find a "Joe citizen" who had downloaded copyrighted content from the Howells, he added, the RIAA would have an open and shut case.

"The judge does seem to be saying that if the RIAA succeeds in showing that if anyone did download files, the family can be found [liable] for potentially contributory infringement," Dave O'Neil, a partner with O'Neil & McConnell, told the E-Commerce Times.

The RIAA is playing an interesting game of footsie with MediaSentry, he added.
Even if the RIAA should ultimately lose its case against the Howells, it would only force the group to change tactics. "It would make it harder for them to prove copyright infringement against people -- and probably more expensive as well," Ilan Barzilay, a partner in Wolf Greenfield & Sacks, told the E-Commerce Times.

Still, such a setback could be an important one -- at least in the eyes of people who do not agree with the recording industry's vision of how music should be distributed online.

Right now, most people the RIAA sues pay their typical US$3,000 fines without a fight. However, when cases do reach trial, the RIAA generally benefits by getting "a little bit of case law established in their favor," Panzer noted, and legislation often follows trends in case law.

Essentially, what the RIAA is doing is landscaping its playing field.

"I am an IP lawyer and do not condone illegal P2P music trading," commented Panzer, "but the way RIAA goes about defending those IP rights is not my choice."