"Making Available" Argument Dismissed in File-Sharing Case

The music industry bewildered by court ruling in L.A.

According to Dmwmedia.com a federal judge turned the tables for Pamela and Jeffrey Howell, a couple accused of copyright infringement, in the recent Atlantic v. Howell lawsuit. Judge Neil V. Wake ended the recording industry’s hope to score a summary judgement victory against Pamela and Jeffrey Howell, under the argument that "merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."

In support of his decision judge Wake noted that "The court agrees with the great weight of authority 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." This means that the case will proceed to trial. You can get the whole order from here (pdf).

RIAA started the lawsuit two years ago, bringing as proof the fact that its agent Media Sentry was able to download songs off the Howells' computer using Kazaa.

In their defense, the Howells said they had indeed Kazaa installed on their PC but downloading files was not at all what they were after, the p2p client being used for something else, and in what concerns sharing some music they did that inadvertently (mentioning that the songs shared had been ripped from a personal CD of the family).

Support for the Howells came from The Electronic Frontier Foundation (EFF), which presented an amicus brief and calling afterwards the ruling as "the most decisive rejection yet" of the 'making available' argument.

Naturally, RIAA was more than unsatisfied with the decision which, they say, goes against the current imposed by other courts rulings and appears quite determined to push the case further.