Atlantic v Howell
Background:
In 2006 Atlantic records sued Jeffrey Howell for copyright infringement. The plaintiff alleged that Howell used KaZaA, a peer-to-peer file sharing program, to make 54 copyrighted sound recordings available for download. In 2007 a federal court awarded a summary judgment, in favor of the plaintiff, for $40,500. In 2008 the motion for summary judgment was overturned.
On January 30, 2006, the recording companies’ private investigator, MediaSentry, logged on to the KaZaA file-sharing system and detected Howell's account with over 4,000 files available for download. MediaSentry took screenshots showing the files that were available for download from the user’s computer. 54 of the detected files were copyrighted sound recordings owned by Atlantic. MediaSentry downloaded 12 of the copyrighted songs from the computer. Atlantic sued Howell for violation of their exclusive right to distribute.
Howell also admitted that he created the KaZaA account and username that MediaSentry identified, that he installed the KaZaA file-sharing program on the computer, and that he authorized certain types of files to be shared through KaZaA. However, he denied having
placed the copyrighted sound recordings in the KaZaA shared folder or having otherwise
authorized sharing of those files. Howell stated that KaZaA had decided to share the copyrighted files without his permission. Howell also stated that other people had access to his computer and could have been responsible for putting the recordings up for download.
Holding:
The court ruled that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public and that making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution. Therefore, the original summary judgment is reversed.
Analysis / Implications of Ruling:
- The “making available†theory of infringement, frequently used by the recording and movie industry seems to have taken a blow.
- Distribution is defined within § 106(3) itself, as a “sale or other transfer of ownership†or a “rental, lease, or lending†of a copy of the work. The section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution. Therefore , an offer to distribute does not constitute distribution.
- Two other difficulties arise because 1) The evidence used against Howell (screenshot and downloading of some of the copyrighted files) was obtained by the record company / an authorized agent. Since a copyright owner cannot infringe by downloading its own copyrighted material, Howells action may not actually be a violation. 2) The plaintiff never proved that Howell was the one responsible for providing the copyrighted files for download.
- The recording company’s original motion is based on Howell’s direct liability for
violating the distribution right. However, they did not prove that Howell was actually a direct infringer. The question is whether Howell distributed an unauthorized copy (direct violation) or provided a third party access to the contents of the shared folder, at which time the third party makes an unauthorized copy (secondary/contributory violation). Last, if contributory violation occurred, Atlantic still has to prove that a third party copied the songs.
Background:
In 2006 Atlantic records sued Jeffrey Howell for copyright infringement. The plaintiff alleged that Howell used KaZaA, a peer-to-peer file sharing program, to make 54 copyrighted sound recordings available for download. In 2007 a federal court awarded a summary judgment, in favor of the plaintiff, for $40,500. In 2008 the motion for summary judgment was overturned.
On January 30, 2006, the recording companies’ private investigator, MediaSentry, logged on to the KaZaA file-sharing system and detected Howell's account with over 4,000 files available for download. MediaSentry took screenshots showing the files that were available for download from the user’s computer. 54 of the detected files were copyrighted sound recordings owned by Atlantic. MediaSentry downloaded 12 of the copyrighted songs from the computer. Atlantic sued Howell for violation of their exclusive right to distribute.
Howell also admitted that he created the KaZaA account and username that MediaSentry identified, that he installed the KaZaA file-sharing program on the computer, and that he authorized certain types of files to be shared through KaZaA. However, he denied having
placed the copyrighted sound recordings in the KaZaA shared folder or having otherwise
authorized sharing of those files. Howell stated that KaZaA had decided to share the copyrighted files without his permission. Howell also stated that other people had access to his computer and could have been responsible for putting the recordings up for download.
Holding:
The court ruled that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public and that making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution. Therefore, the original summary judgment is reversed.
Analysis / Implications of Ruling:
- The “making available†theory of infringement, frequently used by the recording and movie industry seems to have taken a blow.
- Distribution is defined within § 106(3) itself, as a “sale or other transfer of ownership†or a “rental, lease, or lending†of a copy of the work. The section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution. Therefore , an offer to distribute does not constitute distribution.
- Two other difficulties arise because 1) The evidence used against Howell (screenshot and downloading of some of the copyrighted files) was obtained by the record company / an authorized agent. Since a copyright owner cannot infringe by downloading its own copyrighted material, Howells action may not actually be a violation. 2) The plaintiff never proved that Howell was the one responsible for providing the copyrighted files for download.
- The recording company’s original motion is based on Howell’s direct liability for
violating the distribution right. However, they did not prove that Howell was actually a direct infringer. The question is whether Howell distributed an unauthorized copy (direct violation) or provided a third party access to the contents of the shared folder, at which time the third party makes an unauthorized copy (secondary/contributory violation). Last, if contributory violation occurred, Atlantic still has to prove that a third party copied the songs.