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Attorneys

"Making Available" is Copyright Infringement in File Sharing Case

August 28, 2007

By Jeff Pietsch

Last week, a judge for the United States District Court in Arizona has granted a summary judgment in favor of recording companies. The judgment finds the defendant, Jeffrey Howell, liable for copyright infringement for illegally sharing music files. Even though there was no evidence that the defendant actually distributed the music files, the judge found the defendant violated copyright laws by making the files available for distribution. This case is significant because it is the first case that specifically states that “making available” equates to distribution under copyright laws.

This case was brought by several large recording companies against Jeffrey Howell. The recording companies, in an attempt to thwart unauthorized online distributions, hired a company to investigate and detect such activities. The company notified the recording companies that Howell had made available 54 specific sound recordings of musical artists which the record companies owned a valid copyright. Howell had made these files available through a file sharing program named Kazaa in which third parties could access and download Howell’s files. The recording companies filed an action for copyright infringement against Howell and moved for summary judgment on that claim, arguing that there is no disputed material fact that Howell violated their exclusive distribution right for the 54 identified sound recordings. Howell, representing himself, denied these claims and argued that their file-sharing program was "not set up to share" and that the files were for private use and "for transfer to portable devices that is legal for ‘fair use.’"

Title 17, Section 106(3) grants copyright owners the exclusive right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. In order to succeed in a copyright infringement claim the plaintiff must satisfy two requirements to win a prima facie case of direct infringement. First, they must show ownership of the allegedly infringed material. Second, they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under Section 106. The question in this case is whether Howell infringed the recording companies’ copyrights by making available files to be shared by third parties.

The district court held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works in violation of copyright law. The court noted that in a case involving the online file-sharing program Napster defendants were found to have violated copyright owners’ distribution rights by employing “the Napster software to make their collections available to all other Napster users.” The court also cited several cases that suggest that Kazaa users commit direct infringement by employing the Kazaa program to make their collections of copyrighted sound recordings available to all other Kazaa users.

In one such case,a set of screenshots showing the contents of a defendant’s Kazaa shared folder was found to present a cognizable claim for copyright infringement under 17 U.S.C. § 106(3). In another case cited by the court, a Texas court equated the placement of items in a Kazaa shared folder with “publication” as defined by 17 U.S.C.§ 101 because it is a distribution, or an offer of distribution “in which further distribution, public performance or display is contemplated.” Based on these cases, the court in this case held that it is no defense that a Kazaa user did not directly oversee the unauthorized distribution of copyrighted material.

Howell, on the other hand, argued that the recording companies brought forth no evidence that he participated in the distribution. Howell claimed that when the distribution occurred he was at work. Howell argued that screen shots showing the music files in the shared Kazaa folders were not enough to show copyright infringement. Finally, Howell argued that he owned every music file that he transferred to Kazaa and was using the Kazaa program for personal use.

The court disagreed with Howell’s arguments. The fact that Howell owned the music did not deny the possibility of unauthorized distributions. More importantly, the court held that the mere presence of copyrighted works in a shared folder is enough to trigger liability for copyright infringement.

The court ordered damages in the amount of $40,500 and issued an injunction against Howell to cease the distributions. This ruling is significant because the defendant was found liable for simply “making available” music files for download. The plaintiff in this case brought forth no evidence that files were actually distributed, rather the evidence showed they were only made available for distribution. Because the court found that making available for distribution equates to actual distribution, recording companies will have a much easier time succeeding in future suits against file sharers.