p2pnet news | RIAA News:- Another huge piece has fallen out of the wall Warner Music, EMI, Vivendi Universal and Sony BMG have built between themselves and their customers as they strive desperately to gain control of online music distribution and turn people with free choice into grovelling consumers with none.

In what’s rapidly becoming a major issue on- and offline, through their RIAA (Recording Industry Association of America), the Big 4 are claiming just about anything you do beyond merely playing one of their music CDs is illegal and can land you in court facing fines totalling hundreds and thousands of dollars.

Ask Jeffrey Howell, another Big 4 victim forced to act on his own behalf because he can’t afford a lawyer.

To all intents and purposes, singly and collectively, Warner Music, EMI, Vivendi Universal and Sony BMG are Big Music —- the corporate music industry —- and if you copy any of their ‘product’ to your PC, it’s copyright infringement, they claim, at the same time trying to say that isn’t what they’re saying.

In the Jammie Thomas trial, ’star’ RIAA witness Jennifer Pariser, a top level Sony BMG lawyer, declared unequivocally:

“… when an individual makes a copy of a song for himself, I suppose we can say he stole a song”.

Couldn’t be plainer.

And in the Howell case, RIAA lawyer Ira Schwartz says MP3 files Howell copied to his computer from his own legally bought CDs were ‘unauthorized’.

In other words, he definitely shouldn’t have done it, says the RIAA, and that’s why he’s now facing copyright infringement allegations which, if proven, could cost him a fortune.

Clear enough?

But according to RIAA president Cary Sherman, who says the sue ‘em all cases launched by the Big 4 against their customers are just examples of “tough love,” Pariser, “misspoke in that trial“.

He says he knows that, “because I asked her after stories started appearing. It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry.”

And according to the RIAA’s own site, “… burning a copy of CD onto a CD-R, or transferring a copy onto your computer hard drive or your portable music player, won’t usually raise concerns …”

So what’s Howell doing on the wrong end of an RIAA lawsuit?

What indeed”? – ask a lot of people while others, such as CNET News reporter Greg Sandoval, vigorously and enthusiastically defend the RIAA position.

And interestingly, RIAA ‘expert’ Doug Jacobson shows up yet again, as do discredited online bounty hunter MediaSentry and Sharman’s Networks’ equally discredited Kazaa P2P file sharing applicatin, which is in front and centre in so many RIAA sue ‘em all cases.

Now, “another intriguing event has unfolded in the extraordinary drama playing out in Phoenix, Arizona, Atlantic v. Howell, a pro se case,” says Ray Beckerman on Recording Industry vs The People, going on >>>

At first the Court issued an order, at the RIAA’s request, saying that merely “making available” is a copyright infringement, and granting the RIAA’s summary judgment motion.

Mr. Howell thereafter moved for reconsideration, and upon reconsideration the Court granted Mr. Howell’s reconsideration motion and vacated its previous order.

The Court allowed further briefing, and specifically asked the parties to submit supplemental briefs on certain issues. (It was in response to that request that the RIAA submitted papers saying that copying one’s cd’s onto one’s hard drive is unlawful.)

And now – on Friday January 11th – in an extraordinary development, the Electronic Frontier Foundation has filed an amicus curiae brief, refuting the RIAA’s arguments as to the merits of its case.

Among other things, the brief makes the following point:

Plaintiffs’ summary judgment motion is premised solely on the distribution claims and is built around the erroneous contention that “[infringement of] the distribution right does not require a consummated transfer of the copyrighted work at issue.” Plaintiffs’ Supplemental Brief in Support of Their Motion for Summary Judgment, Doc. # 63, at 5 (hereinafter “Plfs. Supp. Br.”).

This proposition, if accepted, would contravene both the plain language of the Copyright Act and applicable precedents, threatening to disrupt copyright law in a variety of contexts beyond this case. As will be discussed further below, several Plaintiffs have already sued a national radio broadcaster, XM Radio, based on a variant of the same “making available” theory that they advance here. See Atlantic Recording Corp. v. XM Satellite Radio, No. 1:06-cv-03733-DAB (S.D.N.Y. filed May 16, 2006). Similarly, copyright owners have also pressed this theory against Google, contending that the Internet search engine runs afoul of an expansive “making available” conception of the distribution right. See Perfect 10, Inc. v. Amazon.com, Inc., __ F.3d ___, 2007 WL 4225819, slip op. at 15463 (9th Cir. amended opinion filed Dec. 3, 2007). This Court should reject Plaintiffs’ effort to further distort copyright jurisprudence on the backs of the pro se Defendants here.

Contrary to Plaintiffs’ arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work. Because the only evidence here consists of downloads by Plaintiffs’ own, authorized nvestigators, Plaintiffs have failed to shoulder their summary judgment burden, and their motion should be denied.

…

Section 106(3) bestows on the owner of a copyright 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.” 17 U.S.C. § 106(3). As this language makes clear, the exclusive right granted by § 106(3) encompasses only the distribution of certain things (”copies or phonorecords”6), to certain people (”the public”), in certain ways (”by sale or other transfer of ownership, or by rental, lease, or lending”). The language of § 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the “making available” of copyrighted works.

Plaintiffs’ effort to rewrite § 106(3) to reach such acts, moreover, is squarely foreclosed by Ninth Circuit authority. In Perfect 10 v. Amazon.com, the Ninth Circuit concluded that “distribution requires an ‘actual dissemination’ of a copy.” Perfect 10 v. Amazon.com, 2007 WL 4225819, slip op. at 15463, affirming in relevant part, Perfect 10, Inc. v. Google Inc., 416 F.Supp.2d 828, 844 (C.D. Cal. 2006). In coming to this conclusion, the Ninth Circuit joins a number of other courts that have addressed this issue in the digital context. See National Car Rental Sys., Inc. v. Computer Assoc. Int’l, 991 F.2d 426, 434 (8th Cir. 1993); In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802 (N.D. Cal. 2005) (collecting authorities); Arista Records, Inc. v. Mp3Board.com, Inc., No. 00-Civ.-4660-SHS, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002). The leading copyright law commentators also unanimously agree that “an actual transfer must take place; a mere offer for sale will not infringe the right.” Paul Goldstein, 2 GOLDSTEIN ON COPYRIGHT § 7.5.1 (3d ed. 2007); accord Melville B. Nimmer & David Nimmer, 2 NIMMER ON COPYRIGHT § 8.11[A] (2007); William F. Patry, 4 PATRY ON COPYRIGHT § 13:9 (2007) (”[W]ithout actual distribution of copies…, there is no violation of the distribution right.”).

Adds Beckerman:

“The Electronic Frontier Foundation’s brief is a landmark document. It should be read from cover to cover by everyone who is interested in the scope of copyright law in the United States. This brief is the definitive statement on the RIAA’s spurious invention of a “making available” theory of copyright infringement, and should put an end to it once and for all.”

Under “to Prevail, Plaintiffs Must Present Evidence That Defendants Actually Disseminated the Works in Question to Third Parties,” and, the controlling authorities establish that an infringement of the distribution right requires that a copyright owner demonstrate an actual dissemination of the copyrighted work at issue,” says the EFF, continuing >>>

Although amicus EFF does not have access to the complete factual record in this case, it does not appear from Plaintiffs’ submissions on summary judgment that they have shouldered their evidentiary burden.

The only evidence of “actual dissemination” of copyrighted works owned by Plaintiffs consists of a hearsay account supplied by Plaintiffs’ expert, Doug Jacobsen, relating information gleaned from materials prepared by Plaintiffs’ retained investigator, MediaSentry. Plfs. Supp. Br. Exh. A (decl. of Doug Jacobsen); Statement of Facts in Support of Plaintiffs’ Motion for Summary Judgment (hereinafter “SOF”), Doc. # 31, Exh. 12. According to this hearsay evidence, on January 30, 2007, MediaSentry downloaded 12 digital files containing sound recordings (only 11 of which are the subject of this motion) from a computer with the Internet Protocol (IP) address 68.110.64.47. SOF, Exh. 12, ¶18. Responding to a subpoena issued by Plaintiffs, Cox Communications identified the IP address as one assigned to the Howell residence at the time. SOF, Exh. 12, ¶ 20

The trouble with this “evidence” of actual distribution is that it derives entirely from the activities of Plaintiffs’ own investigators. It is axiomatic that a copyright owner cannot infringe her own copyright. See Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1348 (8th Cir. 1994). By the same token, an authorized agent acting on behalf of a copyright owner also cannot infringe any rights held by that owner. See Higgins v. Detroit Educ. Television Found., 4 F.Supp.2d 701, 705 (E.D. Mich.1998). Accordingly, where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place. If § 106(3) requires that a copyright owner establish that actual unauthorized disseminations took place, Plaintiffs should not be able to bootstrap their way to that conclusion simply by hiring an investigator.

Of course, evidence gathered by an investigator may be relevant, in appropriate cases, to prove whether actual infringing distributions may have occurred. For example, it is wellestablished that agents of a copyright owner may testify to observed infringements involving third parties. See, e.g., Polygram Int’l Publishing v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1319 (D Mass 1994) (investigators observed unauthorized public performances by trade show exhibitors). In some cases, courts have been willing to accept evidence from investigators who invite defendants to engage in activity that constitutes direct infringement. See, e.g., RCA/Ariola Int’l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 777 (8th Cir. 1988) (defendant’s employees actively participated in infringement). Similarly, in appropriate cases, an investigator’s purchase of infringing material may provide circumstantial evidence that supports the inference that similar sales have occurred to third parties. See, e.g., RCA Records v. All-Fast Systems, Inc., 594 F. Supp. 335, 338 (S.D.N.Y.1984) (experience of investigators created sufficient inference of similar activities with third parties to support preliminary injunction).

Plaintiffs’ hearsay evidence here, however, does not fit any of these descriptions. Plaintiffs’ investigator, MediaSentry, did not observe Defendant’s disseminating any materials to third parties. Nor do Plaintiffs contend that MediaSentry invited Defendants to make any unauthorized reproductions. Nor have Plaintiffs established that MediaSentry’s downloads constitute circumstantial evidence that the Howell’s computer disseminated copies of the 11 songs in question to any other KaZaA user. In fact, Plaintiffs’ own evidence makes this seem particularly unlikely. According to Plaintiffs’ expert, during the period that MediaSentry performed its investigation, there were 2,282,954 KaZaA users online, sharing 292,532,420 files. Plfs. Supp. Br. Exh. A, ¶ 8. Every one of the 11 songs at issue came from multi-platinum hit records. Complaint, Doc. # 1, Exh. A. Even accepting Plaintiffs’ hearsay testimony as true, these facts together suggest that it is highly unlikely that, among the millions of KaZaA users who are likely to be sharing them at any time, these 11 songs would have been downloaded from Defendants’ computer. At any instant, KaZaA users are likely to have thousands of sources for these particular songs to choose from and no reason to choose the Defendants’ computer over any other. And while Plaintiffs may be correct that, in the aggregate, KaZaA users engage in a prodigious amount of infringing activity, that = general statement tells us nothing about the crucial issue in this case: whether these Defendants transmitted (i.e., uploaded) any of these 11 songs11 during the time period in question. Plaintiffs evidence simply cannot bridge the chasm between “making available” and “actual dissemination” to anyone other than Plaintiffs’ authorized agents.

Nor will Plaintiffs’ allegations of spoliation by Defendants fill the evidentiary void. Plaintiffs accuse Defendants of removing the KaZaA software from his computer. Plfs. Supp. Br. at 13. Yet Plaintiffs simultaneously admit that the KaZaA software was unlikely to have yielded any probative evidence regarding any actual disseminations to third parties: “unless the individual KaZaA user makes a log of the files that he or she has actually distributed to other KaZaA users, it is difficult for any third party to determine exactly what files were actually distributed or when.” Plfs. Supp. Br. at 13 & Exh. A, ¶ 9. In light of this concession, it is difficult to make sense of Plaintiffs’ assertion that “Defendants’ intentional destruction of [the KaZaA software] severely and irreparably prejudices Plaintiffs’ ability to prove their claim.” Plfs. Br. at 14. Plaintiffs’ evidentiary problem is the lack of any evidence regarding actual dissemination of any of the 54 sound recordings at issue to anyone other than Plaintiffs’ own investigators. Based on Plaintiffs’ own submissions, neither the KaZaA software nor anything else on Defendants’ computer would have provided such evidence.

In short, the evidentiary difficulties that face Plaintiffs do not appear to be the fault of Defendants. Rather, they appear to be the result of the design of the KaZaA software (insofar as it does not log uploads to other users), and Plaintiffs’ choice to bring a summary judgment motion based solely on their distribution claim. Moreover, while the KaZaA software may not amass and disgorge evidence as conveniently as Plaintiffs might prefer, the software is no different in this regard than other personal-use duplication technologies. After all, consider VCRs, cassette decks, and photocopiers: none keep “logs” of what was copied or to whom copies might have been distributed.

To reiterate, it is not Defendants’ fault that Plaintiffs are unable to produce evidence of actual distributions beyond the 11 authorized downloads performed by MediaSentry, nor is it their burden to prove Plaintiffs’ case. Plaintiffs include some of the largest companies in the recording industry, with nearly limitless resources when compared to Defendants. It is Plaintiffs who have opted to file more than 20,000 lawsuits against individuals, many whom are unprepared for the unfamiliar (to a layperson) demands of discovery. It is Plaintiffs who have chosen to target noncommercial activities that occur in the privacy of the home, thereby injecting themselves “behind closed doors” where factual investigation can be difficult. Having put themselves in this position, Plaintiffs ought not be heard to complain that proving their distribution claims poses evidentiary challenges.

No need to say Stay Tuned.

Jon Newton – p2pnet

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Also see:

Associated Press -Holly’s Widow Fighting Sale of Book, January 12, 2008

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