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Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976 (D. Ariz. 2008) (full-text).
Factual Background Edit
The plaintiffs hired a private investigator, MediaSentry, who logged onto the KaZaA file sharing system and found a user account sharing over 4,000 files of copyrighted music (with the copyrights belonging to the investigators' employers) available for download. The investigator downloaded twelve of these copyrighted songs and the companies’ experts determined the music had originally been downloaded from other users on the Internet. The companies brought an action for copyright infringement after tracing the computer to the Howells.
Trial Court Proceedings Edit
After discovery the plaintiffs moved for summary judgment for violation of their distribution right on 54 of the copyrighted sound recordings. Plaintiffs attached to their motion portions of defendant’s deposition in which he stated that “all of the sound recordings were in the KaZaA shared folder the he created on his computer,” and the recordings were there as a result of his “affirmative choice to use KaZaA to share files.”
Howell initially did not submit any additional portions of his deposition with his response. The court granted the motion for summary judgment. Howell then filed a motion to reconsider, asserting that he had never stated the sound recordings were in the publicly accessible folder, and attached portions of the deposition to support this assertion. The court granted Howell’s motion and called for further briefing from the parties.
Additional portions of the deposition submitted by the recording companies confirmed that Howell did not admit to placing the sound recordings in his shared folder. Howell’s deposition seemed to show that he admitted to placing certain types of files in his shared folder to be shared through KaZaA but denied both placing the copyrighted sound recordings into the shared folder and authorizing KaZaA to share those files. MediaSentry (the investigator) confirmed that KaZaA was granting public access to files on Howell’s computer and not in the shared folder without Howell’s authorization. Howell also claimed to have copied the sound recordings from legally owned CDs to his computer for personal use.
The Howell court determined that at this point in trial, the plaintiffs had established copyright ownership but had failed to establish unlawful distribution. The court followed the rule, as established in several cases and other sources, that “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.” Plaintiffs provided evidence that their investigator downloaded 12 of the copyrighted sound recordings from Howell’s computer but provided no evidence that any other user ever downloaded any of the other 42 copyrighted sound recordings.
Plaintiffs argued that under 17 U.S.C. §106(3) this evidence was unnecessary, and that Howell violated their right of distribution merely by making the copyrighted material publicly available for copying. Plaintiffs relied on Hotaling v. Church of Jesus Christ of Latter-Day Saints, to support their argument that evidentiary proof was unnecessary to prove violation of the distribution right.
The court explained that in the Hotaling case the library had not kept records of the public use of the infringing material and that although ordinarily a plaintiff must show that an unlawful copy was disseminated to the public, if this requirement were required in the Hotaling case, a copyright owner “would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.” The Hotaling court “deemed the library to have distributed those unlawful copies when it ‘list[ed] the work in its index or catalog system, and [made] the work available to the borrowing or browsing public.’”
The Howell court [citing Elektra Entertainment Group. Inc. v. Barker,] pointed out that “the majority of district courts have rejected the recording companies 'making available' theory because Hotaling is inconsistent with the Copyright Act.” The court concluded that “[m]erely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”
However, the court, refrained from turning its back on Hotaling, saying that “evidence that a defendant made a copy of a work available to the public might, in conjunction with other circumstantial evidence, support an inference that the copy was likely transferred to a number of the public.” “On its own, however, [making unlawful copies available] does not prove that the copy changed hands. It only shows that the defendant attempted to distribute the copy, and there is no basis for attempt liability in the statute, no matter how desirable such liability may be as a matter of policy.”
According to 17 U.S.C. §101, all distributions are publications, but not all publications (i.e., making available) are distributions. Following this logic, the court determined that the 42 sound recordings that were not downloaded by the investigator fail the test of actual distribution and therefore the “motion for summary judgment fails as to those recordings.” As to the 12 copies acquired by MediaSentry, the court found that there was still a question of material fact as to whether or not Howell was responsible for their distribution (as he swore he did not choose to share these files), and that a reasonable jury could determine that he was indeed not responsible.
Furthermore, the court explains that the plaintiffs must prove that Howell had done more than “provide a member of the public with access to a work and the means to make an unauthorized copy,” for if they cannot, then “the owner is not liable as a primary infringer of the distribution right, but rather potentially liable as a secondary infringer of the reproduction right.” The plaintiffs here, according to the court, had not explained the architecture of the KaZaA file-sharing system in sufficient detail to permit the court to determine whether the owner of the shared folder distributed an unauthorized copy, or provided a third party with the access and ability to make a copy of their own.