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?
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.
Plaintiffs’ effort to rewrite § 106(3) to reach such acts, moreover, is squarely foreclosed by Ninth Circuit authority. In Perfect 10 v. Amazon.com, the Ninth Circuit concluded that “distribution requires an ‘actual dissemination’ of a copy.” Perfect 10 v. Amazon.com, 2007 WL 4225819, slip op. at 15463, affirming in relevant part, Perfect 10, Inc. v. Google Inc., 416 F.Supp.2d 828, 844 (C.D. Cal. 2006). In coming to this conclusion, the Ninth Circuit joins a number of other courts that have addressed this issue in the digital context. See National Car Rental Sys., Inc. v. Computer Assoc. Int’l, 991 F.2d 426, 434 (8th Cir. 1993); In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802 (N.D. Cal. 2005) (collecting authorities); Arista Records, Inc. v. Mp3Board.com, Inc., No. 00-Civ.-4660-SHS, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002). The leading copyright law commentators also unanimously agree that “an actual transfer must take place; a mere offer for sale will not infringe the right.” Paul Goldstein, 2 GOLDSTEIN ON COPYRIGHT § 7.5.1 (3d ed. 2007); accord Melville B. Nimmer & David Nimmer, 2 NIMMER ON COPYRIGHT § 8.11[A] (2007); William F. Patry, 4 PATRY ON COPYRIGHT § 13:9 (2007) (“[W]ithout actual distribution of copies…, there is no violation of the distribution right.”).
Turning first to the language of the Copyright Act, Plaintiffs contend that the “authorization” clause contained in Section 106 somehow expands direct infringement liability to reach those who merely offer or make available copyrighted works. Plfs. Supp. Br. at 5. Not so. Congress intended the “authorization” clause to provide a statutory foundation for secondary liability, not to expand the scope of direct infringement liability.
A distribution of a copyrighted work requires an “actual dissemination” of copies. See In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802-04 (N.D. Cal. 2005); accord Nimmer § 8.11[A]. In the Internet context, an actual dissemination means the transfer of a file from one computer to another.
Posted by: Actual Use DMCA Required | January 14, 2008 at 12:11 PM