Institute For The Future

Atlantic v. Howell Ruling: A Troubling Caveat

Yesterday I posted about the decision [PDF] in Atlantic v. Howell that found having a shared folder on a sharing service does not constitute copyright violation. After the initial excitement wore off, analysts began to look at a second part of that ruling which, according to David Kravets at Wired, could "embolden" the RIAA's lawsuit extravaganza. Kravets writes, "In the first ruling of its kind, Judge Wake said the 12 songs that RIAA investigators allegedly downloaded from the couple's share-folder could be used against them."

 

Google's Senior Copyright Counsel, William Patry, shares a similar fear. However, in a blog post yesterday, Patry argues that saying that an authorized party downloading a file constitutes an unauthorized distribution is simply incorrect.

 

From Patry's post:

In Howell, Judge Wake held, in denying plaintiffs' motion for summary judgment, that plaintiffs could rely on downloading by plaintiffs' outside investigative firm, MediaSentry, to establish infringement. This is the only part of the opinion I disagree with. Judge Wake wrote: "[T]he recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works." The phrasing of this sentence misstates what occurs and how that relates to plaintiffs' theories. The labels absolutely authorized MediaSentry to download files from Howell's shared folder, and then used that downloading as evidence that there had been an actual distribution. As the court itself wrote: "The recording companies' investigator, MediaSentry, did download 12 of the copyrighted sound recordings from Howell's computer. The recording companies assert that they have proven actual distribution for at least those 12 recordings." The court thus permitted the labels to use their investigator to engage in conduct that the labels then pointed to in proving their allegations. But authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement, as EFF pointed out.

 

The court attempted to get out of this fatal flaw in plaintiff's case by describing MediaSentry's efforts as "part of an [effort] to stop infringement. " So what? That still doesn't make authorized conduct unauthorized. I am aware that the Eighth Circuit thinks otherwise as did the Leadbetter court in the Western District of Washington last year, but both opinions are clearly erroneous. Copyright owners are certainly entitled to use investigators to discover infringement (assuming the investigators use lawful techniques), but having authorized the investigators' conduct they cannot then rely on that authorized conduct to prove a cause of action whose principle requirement is that the conduct be unauthorized. This is the only respect in which the Howell opinion is disappointing, but that disappointment is real and may cause real problems in future cases.

 

So, there we have it. In this particular case, the defendant's claim is that he knowingly shared other files on his computer through the P2P service but unknowingly shared the music files. MediaSentry downloaded 12 of the alleged 54 tracks from Mr. Howell's shared folder. While half of the ruling is still a victory, another part of it does, indeed, raise some troubling questions.

 

That said, the shared folder bit of this ruling is still huge.