One of the pillars of the RIAA's legal campaign has been its assertion that making a file available for download equates to copyright infringement under the copyright act. There have only been a couple of decisions addressing the question so far. One that came down today in Atlantic v. Howell is the biggest rejection yet to the RIAA's "making available equals infringement" argument, as a federal judge has denied the labels' motion for summary judgment, setting the stage for a trial later this year.

Atlantic v. Howell is unusual in that the husband and wife defendants are representing themselves. But the couple has some knowledgeable allies on their side—the EFF submitted an amicus brief on their behalf after the RIAA moved for a summary judgment.

The RIAA sued the Howells in 2006 for copyright infringement, and the couple responded by claiming that KaZaA was "not set up to share" and that the songs listed in the complaint were for "private use" and "for transfer to portable devices, that is legal for 'fair use.'" In a deposition, Jeffrey Howell later admitted to installing KaZaA on his PC, but said that the only files that should have been in the shared folder were "pornography and free to the public software, e-books." (Apparently, the porn was of the amateur, not-copyrighted variety.)

Their defense got off to a rocky start, as Judge Neil V. Wake initially granted the RIAA a summary judgment and awarded the labels $40,850 in statutory damages and court costs. The Howells appealed, citing their lack of knowledge about how KaZaA works, specifically the fact that their "personal files" were shared on the network, and the judge subsequently vacated the summary judgment.

In its brief, the EFF argued strenuously against the RIAA's position that making a file available on a P2P network is distribution. Instead, the labels must show that distribution actually took place in order to prove infringement. The only distribution that the labels can prove wasn't unauthorized, says the EFF, because it was done by MediaSentry on behalf of the RIAA.

As was the case in London-Sire v. Does 1-4, Judge Wake agreed with the EFF's reasoning. "The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," wrote the judge in his order. "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 recent Elektra v. Barker ruling said that making a file available infringes on the right of publication in the Copyright Act, but Judge Wake disagrees. "A plain reading of the statute indicates that a publication can be either a distribution or an offer to distribute for the purposes of further distribution, but that a distribution must involve a 'sale or other transfer of ownership' or a 'rental, lease, or lending' of a copy of the work," he wrote. "The recording companies have not proved an actual distribution of 42 of the copyrighted sound recordings at issue, so their motion for summary judgement fails as to those recordings."

Judge Wake did take issue with one of the EFF's arguments. In its brief, the group said that MediaSentry's downloading of music from Howell's shared folder could not be considered copyright infringement, because the firm was acting as the RIAA's authorized agent. Indeed, the songs downloaded by MediaSentry are unauthorized versions, according to the judge, but he's not convinced that the Howells are ultimately responsible for making the files available.

The RIAA says the judge's decision is an odd one: "This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues," RIAA spokesperson Cara Duckworth told Ars. "We are currently considering all options going forward."

EFF staff attorney Fred von Lohmann hailed the ruling as a "big victory," saying that the judge delivered the "most decisive rejection yet" of the RIAA's making available theory. In the four cases that we know of where the making available issue has been argued in court, judges have sided with the defendants three times and the RIAA once. Of course, none of these have made it to trial yet. According to von Lohmann, Atlantic v. Howell will likely go to trial in September. The verdict will also be in the hands of Judge Wake, because neither party has requested a jury trial.

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