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US beak pecks at RIAA's 'making available' filesharing attack

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A US federal judge has shot down one of the Recording Industry Ass. of America's key arguments in its brave pursuit of students, idiots and grandmothers it accuses of sharing music over peer-to-peer networks.

In an order in the case of the Atlantic vs Howell in Arizona yesterday, Judge Neil Wake said that the RIAA's claim that making copyright sound recordings available to download counts as distribution was wrong. It means the major labels' bid to score a summary judgement victory has been denied, and the case will proceed to trial. The RIAA will have to come up with a new argument.

Pamela and Jeffrey Howell were sued by the RIAA in 2006 after the lobby group's net copyright mercenary, MediaSentry, detected their computer participating in the Kazaa peer-to-peer network. At first Judge Wake sided with the RIAA's "making available" argument, and awarded damages of more than $40,000 in a summary judgement last August.

The couple, who are representing themselves, appealed, saying they were unaware that their "personal files" had been included for sharing by their Kazaa installation. In September 2007, Judge Wake accepted their appeal and vacated his summary decision, effectively returning the case to square one.

When the battle started up again, the Howells had help from the Electronic Frontier Foundation (EFF). It supplied the court with a brief against the 'making available' argument, and despatched staff attorney Fred von Lohmann to provide oral evidence in March. This time Judge Wake decided that because there was no evidence anyone actually downloaded the files from the Howells' Kazaa account, distribution - and therefore copyright infringement - could not be proved.

The ruling won't neccessarily set a precedent in the hundreds of cases the RIAA is pursuing across the US. However, it certainly adds to a growing weight of federal rulings that are making the RIAA's cases against alleged filesharers a tougher sell in court. The EFF's blog hails it as a "big victory". The full order is here (pdf).

An RIAA spokeswoman told Ars Technica: "This is a strange decision that is outside of the mainstream and inconsistent with countless court rulings on these issues. We are currently considering all options going forward."

UK filesharers will note that the BPI, the record industry's British version of the RIAA, has given up on the courts, and is now hoping to clamp down on P2P via its "three strikes" regime in partnership with ISPs. The government continues to threaten providers with legislation if they don't agree to play a role in enforcement. ®

Bootnote

In his deposition testimony, Jeffrey Howell said he had indeed installed Kazaa, but that the only files he was trying to share were "pornography and free to the public software, e-books". Adult industry copyright lawyers can stand down, however, as the porn Howell sought to distribute was of an amateur flavour.

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