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.