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Opinion
P2P Redux: New Twists and Turns
6/13/2008
Another question that is being asked is whether or not, as the RIAA claims, it is a violation of the copyright law just having a copyrighted item on your computer where the file might be accessed by someone else.
Legal Challenges to RIAA
The RIAA suffered a major setback last month when a federal judge said he made a mistake last year in a case that ordered Jammie Thomas to pay RIAA $220,000 for making a handful of copyrighted songs available online.
The RIAA has been prosecuting, and threatening to prosecute, people based on two legal arguments: 1) downloading copyrighted content from unauthorized sources is illegal, and 2) so is placing that content online. The "manifest error" acknowledged by the federal judge may have skewered the second argument.
In the case last year, one of the first to go to a trial jury, a Minnesota woman was found liable for swapping two-dozen songs. Now, the judge in the case, Michael Davis, said he made a "manifest error of law" in giving instructions to the jury. He told them "the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."
What had not been cited in the Thomas trial was an earlier case in the Eighth Circuit court that found in National Car Rental v. Computer Associates, that copyright infringement "requires an actual dissemination."
According to Charles Baker, partner with Porter & Hedges, the judge's admission of an error in the Thomas case is a setback for the RIAA. "It makes its burden of proof that much more difficult. Now they have to undertake the extra step of actually proving that content was downloaded."
That comes on the heels of a federal judge's ruling in April of this year in the similar case of Atlantic v. Howell. In that case the RIAA had asked for a summary judgment based on the presence of copyrighted content in a shared folder. Howell had argued that he had not placed the music into the shared folder and that the KaZaA software had automatically placed it there. Judge Neil Wake denied the RIAA request on the grounds that it was unclear whether Howell had placed the content in the folder and further left open the question of whether its presence there constituted copyright infringement. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate
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