Court Rules Sharing Music is Illegal, Even if Nobody Downloads It

In what will undoubtedly be chalked up as a shutout victory for the recording industry, a federal court in Arizona last week granted summary judgment in favor of the RIAA in one of its many anti-piracy lawsuits against ordinary citizens.

The Howell family of Scottsdale, Arizona has been found guilty of copyright infringement after an investigative team hired by recording labels discovered copyrighted material being shared on Mr. Howell's computer through the Kazaa P2P program.

As Digital Music News first reported, Judge Neil Wake's judgment order clearly states the Howell's home IP address had been turned over to the court by Cox Communications, the Howells' broadband provider. The recording companies (essentially the membership of the RIAA, acting individually) then hired MediaSentry Services to look into the contents of the Howell's shared folder, at least for one of their two computers. There the firm found 2,329 MP3 tracks, many of which were later identified as works copyrighted by the plaintiffs.

Mr. Howell's defense was that 1) he was at work at the time MediaSentry detected his shared folder at home, so he wasn't really the person distributing the files at the time; 2) he legally purchased all the tracks in that shared folder; 3) those files had originally been in a non-shared folder, but some hacker probably found a way of moving them into the shared folder.

That defense didn't fly.

Under federal law, Judge Wake wrote, "Distribution of copyrighted material need not involve a physical transfer." Then citing US code, he added, "'[T]he owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works' in violation of copyright law."

So Howell didn't need to be home at the time, and sharing doesn't require his physical presence. That's a case that P2P proprietors have made in their own defense in the past; this time, it worked against the defendant.

The judge cited previous rulings where Napster users were found guilty of infringement by virtue of having installed Napster and having songs in their shared folder. He then said Kazaa was basically the same: "Several cases suggest that Kazaa users commit direct infringement by employing the Kazaa program to make their collections of copyrighted sound recordings available to all other Kazaa users."

While declining to dispute the fact that the recording companies owned the songs in question, Howell apparently tried to make the case that since he owned the tracks of the songs in question, then placing them on his computer constituted fair use. So the matter of where he placed them on his computer should be immaterial.

Swing and a miss, strike three. "The question is not whether Howell owned legitimate copies of some of the sound recordings on CD," Judge Wake concluded, "but instead whether he distributed copies of the recordings without authorization. Howell's right to use for personal enjoyment copyrighted works on CDs he purchased does not confer a right to distribute those works to others without Plaintiffs' authorization."

Mr. Howell has been fined $40,850 in penalties and court costs, which will probably be the end of it unless he files an appeal. The recording companies had been trying to leverage an Arizona law called "marital community liability," under which the wife may be equally guilty for offenses committed by the husband which she did nothing to stop, but the judge stopped short of going down that road.

By Scott M. Fulton, III, BetaNews

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