PiracyWatch: Arizona Ruling Seen as No Major Blow to RIAA Anti-piracy Fight

Posted by Matthew Heller

An Arizona judge has decisively rejected the "making available" theory that the RIAA has been using to pound alleged file-sharing pirates into submission. But a Wired.com blogger cautions that the decision as a whole is not as favorable to defendants as it might seem.

U.S. District Judge Neil V. Wake earlier this week denied Atlantic Records' motion for summary judgment in its case against Jeffrey Howell and his wife, who are accused of sharing 54 songs over the Kazaa file-sharing network. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution," he said, agreeing with several other federal judges around the country.

"The record industry lost a major court battle," said Wendy Davis of Online Media Daily.

But Wired's David Kravets focused on another section of the ruling in which Wake said Atlantic could argue there was "actual distribution" in Howell's case because an RIAA investigator downloaded 12 songs from Howell's computer.

"It was always assumed that the downloads from RIAA investigators, at MediaSentry, didn't count, because the RIAA authorized these investigators to download its music  -- a practice performed in almost every case," Kravets notes. "But Judge Wake's ruling shoots down that theory. Now, the RIAA doesn't need to argue that a Kazaa user[ ] infringed its work by making songs available online."

Howell has denied placing the copyrighted sound recordings in his Kazaa share-folder or having otherwise authorized sharing of those files. So the trial could come down to a factual dispute over just how those files ended up in the share-folder.

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