Recent reports state that the Federal District Court in New York has dismissed arguments that simply making a file available in a shared folder which can be accessed on a file sharing network can amount to copyright infringement.
In the past it has generally been considered that a positive act of distribution would be required in order to establish infringement however this now longer appears to the case. Billboard reports that a judge in the Elektra v Barker case has held that whilst the Copyright Act does not define 'distribution' it does define 'publication', that these are essentially the same thing and that this can be used to interpret Section 106(3). In allowing the labels further time to amend the complaint the Judge also provided the correct wording to be used in future file sharing cases:
Justice Kenneth Karas wrote that a plaintiff must allege in the complaint that the defendant "made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." The labels' complaint alleged that Barker made the recordings available for distribution to others - not that she "offer(ed) to distribute copies or phonorecords to a group of persons for purposes of further distribution."
Unfortunately this means that placing a file in a shared folder can amount to an offer to distribute and that actual distribution need not take place. While further consideration will be given to this issue in another case - Atlantic v Howell - it appears that for now that this decision will enable the labels to sue more people for more money, more quickly and with lower costs in gathering evidence as they will not have to establish that the file was actually shared with another person.
In the past it has generally been considered that a positive act of distribution would be required in order to establish infringement however this now longer appears to the case. Billboard reports that a judge in the Elektra v Barker case has held that whilst the Copyright Act does not define 'distribution' it does define 'publication', that these are essentially the same thing and that this can be used to interpret Section 106(3). In allowing the labels further time to amend the complaint the Judge also provided the correct wording to be used in future file sharing cases:
Justice Kenneth Karas wrote that a plaintiff must allege in the complaint that the defendant "made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." The labels' complaint alleged that Barker made the recordings available for distribution to others - not that she "offer(ed) to distribute copies or phonorecords to a group of persons for purposes of further distribution."
Unfortunately this means that placing a file in a shared folder can amount to an offer to distribute and that actual distribution need not take place. While further consideration will be given to this issue in another case - Atlantic v Howell - it appears that for now that this decision will enable the labels to sue more people for more money, more quickly and with lower costs in gathering evidence as they will not have to establish that the file was actually shared with another person.
This is an unfortunate decision not just because it will be harder for file sharers to avoid the demands for payment by the labels - whilst I do not personally file share** and I don't think others should break the law, equally I do not think this is a reasonable or effective solution to the issues the labels face. But my concern is also with the artists.
A number of articles this year have indicated that of all the money that has been recouped in damages by the labels against file sharing software developers and network operators, very little has been given back to the artists. So not only do the artists miss out on the money that they might have had if the person sharing the file had purchased it (statistically unlikely in the first event), the very fans they are looking to to attend concerts and support them in other ways are being sued, the primary avenue for others to discover and explore their music is being shut down and still they get no money. Making it easier to sue file sharers is just as bad for artists as it is for the general public - the only real winners are lawyers and maybe the labels.
A number of articles this year have indicated that of all the money that has been recouped in damages by the labels against file sharing software developers and network operators, very little has been given back to the artists. So not only do the artists miss out on the money that they might have had if the person sharing the file had purchased it (statistically unlikely in the first event), the very fans they are looking to to attend concerts and support them in other ways are being sued, the primary avenue for others to discover and explore their music is being shut down and still they get no money. Making it easier to sue file sharers is just as bad for artists as it is for the general public - the only real winners are lawyers and maybe the labels.
A link to a copy of the decision can be found at the RecordingIndustryvThePeople Blog.
(** I have in the past downloaded verified creative commons music on Limewire but do not currently have a copy of the software.)
Articles
Billboard, Court Backs Majors on File-Sharing Question (31 March 2008) <http://www.billboard.biz/bbbiz/content_display/industry/e3i73f32003f239851a2a6aae5368d831e9> at 2 April 2008
RecordingIndsutryvThePeopleBlog, Judge rejects RIAA "making available" theory but sustains complaint, and gives RIAA chance to replead defective theory in Elektra v. Barker (31 March 2008) <http://recordingindustryvspeople.blogspot.com/2008/03/judge-rejects-riaa-making-available.html> at 2 April 2008
ArsTechnica, New ruling may "grease the wheels" of RIAA litigation machine (31 March 2008) <http://arstechnica.com/news.ars/post/20080331-new-ruling-may-grease-the-wheels-of-riaa-litigation-machine.html> at 2 April 2008
Digital Music News, Managers Wondering Where P2P Settlement Checks Are (3 March 2008) <http://www.digitalmusicnews.com/stories/030208money> at 4 March 2008
New York Post, Infringement (27 February 2008) <http://www.nypost.com/seven/02272008/business/infringement__99428.htm> at 3 March 2008
TechDirt, Musicians Wondering Why They're Not Seeing A Cut Of RIAA Settlements (28 February 2008) <http://www.techdirt.com/articles/20080228/125620382.shtml> at 3 March 2008
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