Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory

The district court in Atlantic v. Howell today denied the recording industry's motion for summary judgment against Mr. and Mrs. Howell, two lawyer-less defendants caught up in RIAA's litigation campaign against file-sharers. EFF filed an amicus brief on their behalf in the case and participated in oral argument.

In its order, the court delivers the most decisive rejection yet of the recording industry's "making available" theory of infringement (i.e., if someone could have downloaded it from you, you've violated copyright, even if no one ever did). Citing to the recent ruling in London-Sire v. Doe 1, the court concludes that "[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords." The court goes on to conclude that downloads by the recording industry's own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.

The likely next stop for Mr. and Mrs. Howell is a bench trial (neither party asked for a jury trial) in Phoenix, probably in September. EFF will continue to try to find them counsel.

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Making Available is Not Distribution, Says Court in London-Sire v. Doe

Same day, two federal courts, two different rulings on "making available."

As we mentioned yesterday, a New York court in Elektra v. Barker gave a boost to the recording industry by ruling that an offer to distribute a file on a P2P network can infringe the distribution right, even if no one ever actually downloaded it from you. Well, on the same day, a Massachusetts court in London-Sire v. Doe ruled just the opposite, holding that "merely exposing music files to the internet is not copyright infringement" (we just received the ruling today).

EFF filed an amicus brief in this case (formerly known as Atlantic v. Does 1-21), and our arguments appear to have found a more receptive audience in Boston that they did in New York City (the judge thanks us for our participation on page 11). The 52-page ruling is the most extensive analysis yet of the recording industry's "making available" argument, which claims that you infringe copyright merely by having a song in your shared folder, even if no one ever downloads it.

As we discussed yesterday, a key issue is whether a mere "offer to distribute" is enough to infringe the distribution right, in light of the fact that a mere offer can be enough to constitute "publication." Unlike the court in Elektra v. Barker, the judge in London-Sire v. Doe concludes that "distribution" and "publication" are not identical -- "even a cursory examination of the statute suggests that the terms are not synonymous." If you are interested in the details, the court's analysis is highly illuminating (p. 24-27), touching on a number of earlier rulings, such as Hotaling v. Church of Jesus Christ of Latter-Day Saints and A&M v. Napster (copyright nerds will recognize those as pivotal decisions in this area).

While this is an important victory, the decision may not change much for most individuals targeted for RIAA lawsuits. The judge concludes that evidence of an "offer to distribute" is enough to permit a lawsuit to move forward, even if it's not enough to decide the matter. That means that the RIAA will keep filing lawsuits based on the investigations of MediaSentry. Moreover, the court rejected EFF's argument that the distribution right does not reach digital networks at all.

In light of the disagreement between these two rulings, it's likely that these issues are headed for more consideration by other courts. But we're grateful that these judges (in both Elektra and London-Sire) are doing a thorough job considering these important questions, instead of just taking the RIAA's word on what the law is.

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Offering to Distribute = Distribution, says Court in Elektra v. Barker

Yesterday, a federal court ruled in Elektra v. Barker that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. This ruling opens the door open for civil attempt liability when it comes to distribution -- in other words, that having a song in a shared folder without authorization might be infringing, even if no one ever downloads it from you.

Back in January 2007, the court heard arguments in Elektra v. Barker, one of the thousands of cases brought against individuals by the recording industry. The briefing (amicus briefs were filed by EFF, CCIA, MPAA, and the United States) focused on the recording industry's "making available" argument in these cases. EFF has argued that "making available" really amounts to a new "attempted distribution" theory of copyright infringement, where the record industry can collect $750 per song even if no one ever made any copies of the songs in your shared folder.

In yesterday's ruling, the court appears to have been led astray by language in other decisions that treats "distribution" as synonymous with "publication" (which does include offers to distribute). While the two terms certainly shed light on each other in some circumstances, it is a mistake to treat them as identical in all circumstances. The concepts of "publication" and "distribution" serve very different purposes in the Copyright Act. Before the 1976 Copyright Act, federal copyright did not apply to a work until it was "published." So the moment of publication was critical both for calculating the duration of a copyright and for determining whether a work fell into the public domain for failure to comply with formalities (like including a copyright notice). By allowing mere offers to distribute to trigger publication, Congress was adopting a rule that limited the scope of copyright law. Just putting a book on sale would start the clock running on copyright. And if the book was even offered for sale without a copyright notice, you lost the copyright immediately. Those who were later sued for infringement wouldn't be put to the trouble of proving when the first copy was sold (which might have happened many years earlier).

When it comes to distribution, in contrast, including mere offers as acts of infringement expands the scope of the copyright, allowing copyright owners to reach mere attempts at distribution. There is no justification for this, since mere attempts do not actually harm copyright owners -- I can have thousands of songs in my shared folder, but if no one ever downloads any of them, how has the copyright owner been harmed? Moreover, when a copyright owner sues, the evidence should still be fresh (at least when compared with evidence regarding the initial publication of a work), making it unnecessary to allow a mere offer to stand in for actual evidence of distribution.

The good news is that this "offering to distribute" theory is still far from accepted in copyright circles, is at odds with the Ninth Circuit precedent (see Perfect 10 v. Amazon.com), and is rejected by all the leading copyright law treatises. In addition, the court did not reach EFF's additional argument that the distribution right does not apply to digital transmissions at all. We'll have to leave that fight for another day.

The next ruling to address the "making available" argument is likely to be in Atlantic v. Howell, which may shed some light on how much influence yesterday's Elektra v Barker ruling will have on other judges.

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Comcast Reduces Discrimination, Plans To End It Altogether

Last month, shortly before the FCC held its first hearing in an investigation of Comcast's interference with BitTorrent and other P2P protocols, we noticed that Comcast was no longer injecting forged TCP RST packets in the simple tests we had been running on its cable network. Those tests had been showing interference through January 2008. Some sources with access to larger datasets informed us that the cable ISP was nonetheless still using RST packets against some BitTorrent sessions, just not the simple uses of BT and Gnutella that we had been testing. The status quo: Comcast is still interfering with P2P, but they are being more subtle about it.

Today, Comcast has announced that it will phase out its discrimination against P2P protocols entirely by the end of the year. According to the WSJ's coverage, the cable company is considering switching to non-discriminatory dynamic traffic shaping, which — as we've previously argued — is a much more responsible way of coping with network congestion. We're also pleased that Comcast is collaborating with the BitTorrent developers; we've been urging them to collaborate with the wider technical community for some time.

This is a big victory for common sense and a big victory for an Internet based on open standards, not the whims of major ISPs. But there's still more work to do.

In particular, the Internet community clearly needs to do a lot more testing for discrimination by the thousands of ISPs around the planet. EFF — and a number of other groups — have been working to build tools for those tests. In a follow-up post, we'll talk about projects that have already launched, and others that are in the pipeline.

[Update: The follow-up post is now online.]

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Monetizing File-Sharing: Collective Licensing Good, ISP Tax Bad

Last week at SXSW, music industry veteran Jim Griffin broached the idea that file sharers pay a small fee through their ISPs in exchange for unlimited file sharing. There is a great deal to recommend an idea like this (as we've been saying since 2004), but there's a right way and a wrong way to go about it.

We are big fans of a collective licensing solution for the music file-sharing dilemma: music fans pay a few dollars each month in exchange for a blanket license to share and download whatever they like; collecting societies collect the money and divvy it up between their member artists and rightsholders. It's not a radical idea -- that's roughly how we pay songwriters for radio play, concert hall performances, and the music playing in your favorite restaurant.

But this should not turn into, as some have called it, an "ISP tax." Any collective licensing solution should be voluntary for fans, artists, and ISPs alike. We don't have a compulsory "restaurant tax" for songwriters -- there's no reason to have a compulsory "Internet tax" for file sharing. It should give fans what they want, rather than trying to withhold things from them -- after all, artificial scarcity is what got us into this mess. And it must give artists the freedom to choose among competing collecting societies, which is the only mechanism that will guarantee the kind of transparency and efficiency that much of the current music industry lacks.

Read on for a quick reference guide to help distinguish a good collective licensing plan from a bad "ISP tax."

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EFF to FCC: "Reasonable Network Management" Requires Transparency

In response to the FCC's inquiry into Comcast's interference with BitTorrent traffic, EFF filed comments yesterday urging the FCC to make it clear that ISPs must, at a minimum, adequately disclose their "network management" practices before they can hide behind the excuse of "reasonable network management."

The FCC has invited public comments regarding the Comcast BitTorrent blocking affair in response to two petitions: one filed by Vuze (formerly Azureus) and another filed by the Media Access Project, FreePress and Public Knowledge. (The recent public hearing in Boston, in which Comcast paid people to fill seats, was also part of this same proceeding.)

The central question in the proceeding is whether Comcast has violated the four neutrality principles set out in the FCC's Internet Policy Statement. It seems clear that Comcast's protocol-specific interference with BitTorrent traffic violates those neutrality principles. In response, Comcast (and other ISPs) have offered the excuse that it was all "reasonable network management" -- a catch-all exception to the FCC's neutrality principles.

In its comments to the FCC, EFF urges the agency to clarify that the "reasonable network management" exception to its neutrality principles should only apply where an ISP has adequately disclosed the existence and likely consequence to customers of its discriminatory practices. After all, if we believe that market forces are our first line of defense against unreasonable ISP behavior, those forces can only work if customers, competitors, innovators, and policy-makers know what the ISPs are up to. On that score, Comcast has obviously fallen short, issuing a series of denials, evasions, and half-truths for 10 months after its own customers caught them interfering with BitTorrent traffic. The FCC needs to send a message to Comcast and other ISPs that this is unacceptable.

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RIAA File-Sharing Complaint Fails to Support Default Judgment

The recording industry's litigation campaign against individual file-sharers suffered a setback earlier this month when a federal judge ruled in Atlantic v. Brennan that the boilerplate complaint used by the recording industry in these cases would not support a default judgment. Ars Technica has an excellent summary of the legal standards and why the ruling represents a blow to the "spam-igation" techniques of the recording industry.

Default judgments may be entered against defendants who never respond to a lawsuit, but only if the complaint lives up to certain minimum standards. In ruling that the recording industry's complaint fell short of this mark, the judge specifically rejected the recording industry's "making available" arguments (and thereby endorsing the argument that EFF recently made in Atlantic v. Howell):

At least one aspect of Plaintiffs’ distribution claim is problematic, however, namely the allegation of infringement based on “mak[ing] the Copyrighted Recordings available for distribution to others.” (Compl. ¶ 13.) This amounts to a valid ground on which to mount a defense, for “without actual distribution of copies . . . there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. n.10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”).

It remains to be seen whether the recording industry has the particularized evidence necessary to back up their boilerplate complaints. But this ruling suggests that courts are not prepared to simply award default judgments worth tens of thousands of dollars against individuals based on a piece of paper backed by no evidence.

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As Evidence of Piracy Weakens, House Passes Overbearing "Campus Digital Theft Prevention" Requirements

The House passed the College Opportunity and Affordability Act (COAA) last week, leaving the troubling "Campus Digital Theft Prevention" requirements intact despite recent revelations that fears over unauthorized campus-based filesharing were drastically overblown by the motion picture industry.

The provision requires universities to combat unauthorized file sharing in two particular ways: by planning to engage entertainment industry-blessed downloading services and planning to use filters or other network tools to interdict infringing activity. It's unfortunate that a bill about college funding is being used as a vehicle for the entertainment industry, which has been making a concerted effort to target the youth and the higher education community with corny videos, invasive technology, and bad law.

The passage of this provision is particularly shocking in light of the recent revelation that the 2005 study that the Motion Picture Association of America (MPAA) relied upon in lobbying Congress was tainted by a "human error." The secret, not-peer-reviewed MPAA study, which originally accused college students of being responsible for 44% of domestic revenue losses due to unauthorized downloading, was corrected to say that only college students were responsible for only 15%. And because only 20% of college students live on campus, then campus networks themselves are responsible for only a fraction of piracy-related losses. More importantly however, the MPAA is still hiding the study's methodology from the public -- they state only that "the MPAA will retain a third party to validate LEK's updated numbers."

What's next? The House and the Senate must meet "in conference" to reconcile differences in their respective versions of the same college funding bill, and the Senate's version of the COAA does not contain the mandate for exploring alternative downloading services and network filters. There's still a chance that members of Congress involved in the conference process will see through the smoke and mirrors to stand up for students and universities in rejecting this unnecessary and dangerous mandate.

As we've said before, there are more sensible ways to get creators compensated while respecting the privacy of students and faculty on university campuses.

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Arista v. Does 1-21: What's at Stake for the Rest of Us

As if it weren't bad enough that the RIAA's lawsuits against file-sharers are futile, unfair, and immoral [PDF], they are also beginning to distort the law. In many of these cases, the recording industry is urging judges to accept controversial legal theories on the way to busting file sharers. It's not clear whether this is a tactical effort to cut legal corners to save money, or a strategic effort to build lower court precedents for use in other cases. Either way, these are frequently extremely unfair fights (such as in Atlantic v. Howell, where the defendant can't even afford a lawyer), and thus bad vehicles for making controversial new law. The judges simply aren't hearing both sides.

EFF is trying to do something about that.

Earlier this week, EFF filed an amicus brief [PDF] in Arista v. Does 1-21, a case against 21 Boston University students whose identities are being sought through a subpoena to the university. One of the anonymous students filed a motion to quash the subpoena, which is now pending before Judge Gertner in Boston. EFF filed the amicus brief on Monday, which was accepted by the judge yesterday.

EFF's brief in Arista v. Does 1-21 focuses on two issues that have been the subject of several EFF briefs in the past:

First Amendment Protection for Anonymous Speech: In many other cases, EFF has long fought hard to establish a baseline of constitutional protection for anonymous speech online. We've been successful, with courts recognizing that, where anonymous speech is concerned, you don't get to unmask someone just by having your lawyers file a meritless lawsuit in order to issue a subpoena. Instead, courts must make a preliminary inquiry to ensure that the suit has merit.

The RIAA, however, insists that their boilerplate complaints are enough to unmask anonymous file-sharers, even when completely unsupported by any specific evidence about the target. That's just flat wrong, as other courts have recognized [PDF]. But the RIAA keeps making the argument, without mentioning the First Amendment standard.

It may well be that the recording industry can meet the constitutional threshold here (as they have in other cases where they were forced to come forward with the evidence gathered by MediaSentry). But it's critical that the precedents don't get distorted to somehow treat copyright claims as exempt from the constitutional test that applies to every other sort of anonymous speech online. To understand the importance of consistently applying the right standard, imagine how this would work in a future case where a copyright owner was trying muzzle or intimidate an anonymous fair user (see, e.g., OPG v. Diebold, where Diebold tried to use bogus copyright claims to censor leaked documents off the Internet).

Distribution and "Making Available": In all of these cases, the recording industry is arguing that simply having a file in a shared folder makes you an infringer because you are "distributing" the file, even if no one has ever downloaded it from you. Huh? That sounds like attempted distribution, at best. That's not the law (and the Department of Justice has thus far failed in its efforts to change the Copyright Act to reach mere attempts).

This "making available" theory is wrong in two ways. First, as we've argued in other cases, distribution under the Copyright Act doesn't apply to electronic transmissions. Second, even if it does, the copyright owner has to prove that an actual distribution occurred -- it's not enough to say it could have happened.

This doesn't leave the recording industry without a weapon -- everyone agrees that file sharing involves the making of unauthorized copies of songs. It's just that the recording industry doesn't want to have to go to the trouble of gathering and introducing evidence of copying in court (like everyone else does). It's much easier to rely exclusively on MediaSentry's downloads from each defendant -- that way there is no need to know anything about the defendant.

The trouble with this is the precedent it sets for the future. Already, the recording industry has sued XM as a "distributor" because they transmit satellite radio to subscribers who have recording devices. The movie industry also pressed this "making available" theory against Google [PDF], reasoning that just linking to something online "makes it available." Fortunately, courts in these high profile cases have not taken the bait. But if the RIAA racks up a string of contrary precedents in file sharing cases, the next lawsuit against XM or Google might come out differently.

The trouble for those who are hoping to prevent these kinds of distorted precedents is that it's hard to keep up with all of the more than 20,000 lawsuits (and litigation threats) that have been brought by the recording industry. With any luck, one of the judges will sit down and write a strong opinion letting the RIAA know that it can't use overmatched file-sharers to reshape the law to their liking.

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EFF Files Brief in Atlantic v. Howell Resisting RIAA's "Attempted Distribution" Theory

On Friday, EFF filed an amicus brief in Atlantic v. Howell, an Arizona lawsuit brought as part of the RIAA's national campaign against individuals for file-sharing. Although the case has received attention recently over the issue of whether CD ripping is legal, the main event in the case is about something different: can the RIAA sue people for attempted copyright infringement?

EFF's brief (as have several courts) says no.

As in more than 20,000 other lawsuits, the recording industry claims that Mr. and Mrs. Howell committed copyright infringement by using P2P file sharing software (in this case, Kazaa). But rather than going to the trouble of proving that the Howells made any infringing copies (by ripping CDs or downloading songs) or any infringing distributions (by uploading to other Kazaa users), the record labels argue that simply having a song in a shared folder, even if no one ever downloaded it from you (i.e., "making available"), infringes the distribution right. This essentially amounts to suing someone for attempted distribution, something the Copyright Act has never recognized (although the DoJ unsuccessfully tried to get something like that from Congress last year).

The RIAA's position is troubling not just because it would set a dangerous precedent, but because it has already been rejected by several courts after pitched battles between big copyright owners and big defendants. For example, when the RIAA tried this maneuver against Bertelsmann in the Napster case, they were shut down. When the entertainment industry tried it against Google in the Perfect 10 case, they were shut down.

Now the RIAA has resorting to pushing their discredited "making available" theory against individual P2P defendants, many of whom can't even afford a lawyer, hoping to chalk up lower court precedents going their way (BTW, this is the same theory that was at the heart of the Jammie Thomas jury instructions in Minnesota).

Sure, it would make it quite a bit easier for the RIAA if they could go to court and simply say "this person had our songs in their shared folder, we win." But that's not the law. If the RIAA wants to bring tens of thousands of lawsuits against individuals, they have to play by the rules and prove their cases. That means proving that actual infringing copies were made or that actual infringing distributions took place. It's not enough to prove that they could have taken place.

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