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Law & Disorder / Civilization & Discontents

EFF tries to quash labels’ “making available” claims

Can the music labels sue someone for copyright infringement without being able …

The music labels' case against Jeffrey and Pamela Howell has taken on mythic dimensions over the last few weeks after the Washington Post went a little nuts and implied that the labels were suing the couple for making personal rips of their CDs (it later corrected the story). The truth is that Howells are being sued for having those rips in a shared KaZaA folder. But lost in the controversy over the RIAA's refusal to say that personal CD ripping is legal is the fact that the Howells aren't being sued for swapping songs with thousands of people around the world; instead, they are charged with making songs "available" for download. In a new amicus brief (PDF), the EFF argues that there's no such thing as "attempted copyright infringement." Yet.

The labels allege that 11 specific tracks were shared by the Howells, though the only evidence of such sharing was the fact that the files were in a shared folder and were also downloaded by the RIAA's investigative arm, MediaSentry (now SafeNet). According to the EFF, though, this simply is not evidence of actual copyright infringement. The group takes no position on whether the Howells are guilty or not, but it does want to challenge this particular method of attack.

Because the law specifically gives copyright owners the ability to control copies distributed "to the public," the music labels need to show that such distribution took place. The EFF points out that the copyright holder itself can hardly be considered "the public," and goes on to claim that "an authorized agent acting on behalf of the copyright owner also cannot infringe any rights held by that owner." Their conclusion is therefore that "where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place."

The music labels appear to be claiming, in essence, that because MediaSentry was able to download the files, it's pretty darn likely that at least one member of the public did so—but they don't actually offer evidence that this happened.

The EFF, turning to mathematics to defend its argument, points out that 2.2 million KaZaA users were online back when MediaSentry grabbed the files in question. Because the songs in question were from hit records and not niche indie bands, the EFF says that "it is highly unlikely that, among the millions of KaZaA users who are likely to be sharing them at any time, these 11 songs would have been downloaded from Defendants' computer."

The EFF wants to put the brakes on the labels' "making available" theory and force the labels to show actual distribution to members of the public. The ramifications extend far beyond this particular case and even beyond the music industry's lawsuits in general, and could affect everything from satellite radio to search engines.

Although attempted copyright infringement isn't yet illegal, it could be in the future. Rep. Steve Chabot (R-OH) introduced the Intellectual Property Enhanced Criminal Enforcement Act of 2007 last summer. The bill, which was backed by the Justice Department, would allow some prosecutions for "attempted infringement." That bill, fortunately, has gone nowhere. Yet.

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