joegratz.net

Judge Neil V. Wake of the District of Arizona today issued this opinion in one of the RIAA file-sharing cases, Atlantic v. Howell.  The RIAA had argued that even though there was no evidence that the defendant’s file sharing software had ever actually sent out any infringing files, the fact that the defendant made those files available for download was an independent infringement of the distribution right, 17 U.S.C. 106(3).  Some courts have (erroneously) so held, but Judge Wake rebuffed the RIAA’s attempt to lower its burden of proof:

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. The statute provides copyright holders with the exclusive right to distribute “copies” of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.

Much of the credit goes to an outstanding amicus brief filed by Fred von Lohmann of the EFF.