LAWFUEL- The Legal Newswire – The Minnesota woman who was slapped with a $222,000 penalty for “making available” songs on the Kazaa network is appealing her loss, Declan McCullagh writes.
But can she actually win against the Recording Industry Association of America?
There’s probably a 50-50 chance. On one hand, the RIAA has won some minor victories in the last few years with its “making available” arguments to expand copyright law beyond what it actually seems to say. Now that there’s finally going to be some serious public and judicial scrutiny, however, the odds are closer to even.
(If the RIAA wins, by the way, the precedent would create some real dangers for innocent users. But more on this later.)
What’s important to remember here is that the RIAA’s victory rests in large part on, as I wrote last week, the judge’s decision that the record labels need only prove that Thomas made copyrighted music “available” on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point.
To understand how this will play out, let’s start with the plain text of the relevant part of federal law. It says:
17 USC 106: The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) 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
Illicit distribution of copyrighted materials over Kazaa involves paragraphs (1) and (3). Those paragraphs restrict the unauthorized “reproduction” or “distribution” of music–which sure doesn’t seem to cover Thomas leaving songs in her shared directory if they were never actually downloaded.
So how can the RIAA get away with this? This is where things get murky. The definition of “publication,” which the U.S. Supreme Court says is the same as distribution, says: “Offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.”
Some courts have interpreted that to mean proof of actual copying is necessary; others haven’t. Take a 1997 case involving the Church of Jesus Christ of Latter-Day Saints, sued by genealogical researchers who sold their copyrighted work on microfiche. Instead of buying multiple copies, the Mormons bought only one, made copies, and sent the duplicates to their branch libraries.
The copyright-holding genealogists took the position that the RIAA does today. They claimed that merely proving the copyrighted work was available was good enough. In response, the church argued that the researchers needed to show a library patron actually had read the pirated microfiche.