Download this: recording industry loses key decision in file sharing case

An Arizona Court delivered a key ruling this week that undercuts the Recording Industry Association of America's legal tactics in pursuing action against those it accuses of illegally sharing digital recordings.

First, a little background. Ask the average person on the street how the recording industry pursues legal action against people who share copyrighted files, and that person will probably say, "They sue people who download illegally." However, this is not what the RIAA does. They have no way of finding out who is downloading files illegally.

The RIAA instead locates persons they believe are opening certain directories on their computers to file sharing by others, and then suing them if the shared directories contain copyrighted files, under the idea that said persons are illegally "distributing" said files. Keep in mind also that the RIAA, having no idea who might actually own the computer in question, or any idea who might have saved the incriminating files to a shared directory, is simply choosing to sue the person who paid for the internet service for the computer, under the assumption that said person is completely responsible for the computer's use.

For the most part, the RIAA has not seemed overly eager in the past few years to have their dubious legal theories validated in America's court rooms. Instead, it has largely been content to frighten the public by filing huge lawsuits against the individuals it accuses, only to turn around and immediately settle the same cases out of court for tiny sums.

The RIAA has actually won such a case in court exactly once. In 2007, the RIAA successfully sued Jammie Thomas, a single mother of two from Minnesota, for making copyrighted songs available on a peer-to-peer system. Thomas was found guilty, although there was indication that the jury was swayed principally by the fact the Thomas had deliberately destroyed key evidence and because she had not told the truth during the trial. However, the RIAA's strategy was seemingly vindicated by jury instructions stating that Thomas could be found guilty for "making available" copyrighted files as this sufficed to constitute an infringement of the plaintiffs' distribution rights.

So it was a shock this week for the recording industry when Judge Neil V. Wake, presiding over Atlantic vs. Pamela and Jeffrey Howell, denied the RIAA's motion for summary judgment in that case, in which Jeffrey Howell was accused of illegally distributing files by, once again, simply making them available to others in a shared directory. The judge ruled instead that "infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords," and that there was no proof that the defendant had distributed copyrighted songs to anyone.

Thinking about Judge Wake's decision (of which I approve), I chanced to ask myself how the RIAA's legal tactics would work if copyright holders attempted to apply them to non-electronic media.

Suppose that someone parked a car in a public garage, and taped to the outside of that car were all the pages from the most recent Harry Potter novel. It is theoretically possible that anyone could come along and either photograph or hand-copy all the pages, thus illegally obtaining a "copy" of the novel. Then the copyright holder, having no idea who owns the car, no idea whether the owner was even aware of the taped pages, and no idea whether anyone ever saw the taped pages, files a lawsuit against the person who paid for the parking space.

People are going to keep downloading movies and music, and the RIAA's strategy of bogus litigation is not going to solve the problem.

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