Judge Rejects "Making Available" Theory in File-Sharing Case

Authored by Mark Hefflinger on April 30, 2008 - 9:30am.

Los Angeles - A federal judge has rejected a pillar of the recording industry's argument in the copyright infringement lawsuits it has filed against file-swappers, ruling that simply "making available" songs in a shared folder on their computers does not equate to infringement. In Atlantic v. Howell, Judge Neil V. Wake has dismissed the label's motion for summary judgment against Pamela and Jeffrey Howell, saying in his ruling that "merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."

"The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," Judge Wake wrote.

The case will now go to a full trial.

The Recording Industry Association of America (RIAA) sued the Howells in 2006, presenting evidence that its agent Media Sentry was able to download songs off the Howells' computer using Kazaa.

For their part, the Howells argued they were using Kazaa for purposes other than downloading music, did not know they were sharing songs, and that the songs in their 'shared' folder were ripped from CDs they own.

The Electronic Frontier Foundation (EFF), which submitted an amicus brief backing the Howells, called Judge Wake's order "the most decisive rejection yet" of the 'making available' argument.

"This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues," said an RIAA statement. "We are currently considering all options going forward."