Keith Irwin, in a comment, points out that lawyers for RIAA lawsuit defendant Patricia Santangelo appear to be basing her defense in part on the theory I outlined in this post. I noted that it could be difficult for the RIAA to show infringement without proof that someone other than the RIAA had downloaded one of the songs in question. Irwin sends a link to an MTV News story quoting Santangelo’s attorney:
“As an exhibit in the complaint, they typed up a list of six songs that RIAA investigators downloaded from a shared account that was supposedly on my client’s computer,” Rogers said. “The complaint said those files were there for sharing, but they have no evidence that anyone did share them. For them to prove copyright infringement, they have to show that there was unauthorized distribution of a copyrighted file to the public. If they knew some 16-year-old who downloaded those songs from my client’s drive, that would be copyright infringement, but if their own investigators did it, it’s not distribution to the public. A copyright owner cannot infringe on their own copyright.”
I almost certainly wasn’t the first to think of it, but it’s nice to see other minds thinking alike. It will be interesting to see whether this theory works in the real world. Santangelo’s lawyers’ blog, including links to case documents, is here.