In a move that hearkens back to the days of cassette tapes, the RIAA via Atlantic Recording has filed suit against Pamela and Jeffrey Howell in Arizona regarding their production and distribution of MP3 files on the KaZaA file-sharing network. Currently, there is a moderately violent debate at Slashdot, over whether the RIAA is claiming the crime is the creation of the MP3 files, or the distribution of those files over KaZaA’s network. It appears that the Court has a similar question, as shown by the second question this brief references from an Oct 3 Order issued by the Court:

Does the Record in this case show that Defendant Howell possessed an “unlawful copy” of the Plaintiff’s copyrighted material, and that he actually disseminated the copy to the public?

Please note, that there is no doubt that the Howell’s violated copyright by distributing the digital forms of the media over the Internet, at least when considering contemporary interpretation of copyright law. The above quote raises the issue that perhaps the claim is being made that even the creation of the digital copy constitutes an ‘unlawful copy’.

As an aside, the US Copyright Act defines Publication as follows.

[T]he distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.

The RIAA has taken to taking the language which reads “The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution,” as the basis for their suits against File-Sharers. With the way most File Sharing systems are set up, placing a file up for share does constitute distributing copies for the purposes of further distribution. Based on the wording of the law, would it then be legal to participate in a file-sharing network where users didn’t put up their own downloads for redistribution, but only offered the files they had created themselves from source media be legal? If it is, I know it wouldn’t remain so for very long before the law was amended. Incidentally, I disagree with the RIAAs intepretation of the law that merely offering to distribute copies is illegal, as that is not what the law says (and would have made the Mix Tape culture of the 80s and 90s quite illegal), the law clearly indicates that the purpose or intent of the offer to distribute is important. The Copyright Office’s agreement with the RIAAs interpretation of the law, does not change the law from what it is, that office doesn’t have that power, though their support may likely influence Judicial opinion.

All that said, there are several instances of legal precedent that participating in a file-sharing network is a violation of copyright law. The brief has a several more references than those above. I don’t agree with the precedent, but I also acknowledge that either a Judge or a Legislator need to do something about reversing the precedent. I am not either of those things, and I don’t have a lot of faith in those men to reverse the precedent either. After all, our Legislators passed the DMCA, and our Judges have issues amazing damages for these infractions. In this case, the RIAA is requesting $750 for each song shared on KaZaA. I’d love to see how the arrived at that figure for the damages done to them.

All this case law supporting the premise that the use of file sharing networks to transmit copyrighted materials have provided a clear interpretation of these laws. Unless the law is changed, or the interpretation of that law is changed (something that would need to be done by the Supreme Court at this point), we are left with users being responsible for the files they make available on file-sharing networks. Ultimately, I am not entirely against this interpretation, but I do believe that a reality check is required on the damages being awarded in many of these cases. I am also disturbed the equating of a person’s ability to do something, with their intent or purpose to do it.

Indeed, Defendant's conduct in this case has subjected Plaintiffs' valuable sound recordings to ongoing "viral" infringement. See In re Aimster Copyright Litig., 334 F.3d 643, 646 (7th Cir. 2003) (observing that "the purchase of a single CD could be levered into the distribution within days or even hours of millions of identical, near-perfect … copies of the music recorded on the CD"). When digital works are distributed via the Internet, "[e]very recipient is capable not only of … perfectly copying plaintiffs' copyrighted [works,] … [t]hey likewise are capable of transmitting perfect copies of the [works]." Universal City Studios v. Reimerdes, 111 F. Supp. 2d 294, 331-32 (S.D.N.Y. 2000), aff'd, 273 F.3d 429 (2d Cir. 2001). The "process potentially is exponential rather than linear," which means of transmission "threatens to produce virtually unstoppable infringement of copyright." Id.

And this is where the idea that the RIAA may be trying to form precedent for the villification of MP3 (or Ogg Vorbis, et al) production comes into play. Certainly, they are quoting other decisions here, but the argument that if I distribute digital copies of distributed works for which I have not been granted distribution rights, that I am guilty of distributing them for the purposes of further distribution is dangerous precedent. I agree that the people to whom I’m distributing have the ability to further distribute the work, but it seems to me that the law would require that it be proven that I encouraged such behaviour. Certainly, on traditional file-sharing networks, further distribution is encouraged, as they will typically automatically share any downloaded media. This again raises the question that if a file-sharing network were created which expressly disallowed the sharing of media by a user who had downloaded said media from the network, would it also be constituted as illegal under this same justification?

Ultimately though, I haven’t answered the question that I began the post with. Aside from a few strange wordings:

Defendant intentionally uploaded digital music files to his computer and that those files were being distributed to other KaZaA users from Defendant's KaZaA shared folder without Plaintiffs' permission

Defendant possessed unauthorized copies of Plaintiff's copyrighted sound recordings on his computer and actually disseminated such unauthorized copies over the KaZaA peer-to-peer network.

Both the above quotes say the same thing, but the way the sentences are structured makes it seem to imply that not only the distribution, but even the act of creation is questionable by RIAA standards. The rest of the language throughout the supplemental brief suggest otherwise though, and unlike the person who originally sent the story to Slashdot, and some of the Slashdot posters, I don’t beleive that the RIAA is trying to vilify this just yet. I understand why they’re going after file-sharers. I disagree with their intepretation of the law, and believe it places too much extrapolation on the intent of the distribution, but I’m willing to live with that. What I really take issue with is the damages being requested by the media firms. $40,500 for sharing 54 songs seems unreasonable to me, and until I see where that figure is derived from, I will continue to question those damages.

I am not a supporter of the RIAA. I feel that they go too far to try to limit our ability to use the media we purchase from them. And it’s not simply the RIAA, but all the major media houses, really. I think fair-use means something, but in this instance, with the file sharing, I don’t see a good argument for the RIAA fighting against fair use. Nor do I see any good evidence of a strong attempt to vilify MP3 creation, though they don’t appear to make a good attempt to answer the question of the Court which crowned this post. It seems that the RIAA is differentiating between an MP3 residing on a file system, and an MP3 residing in a folder which will be shared over the internet. The distinction is interesting, but very important. As long as the RIAA sticks to that distinction, I see nothing changing in their war on file-sharers.