"Making Available" Is Not Enough for the RIAA to Show Infringement

I was recently interviewed for a story in EcommerceTimes.com discussing the District of Arizona's decision in Atlantic v. Howell, the latest RIAA file-sharing case to make it to a trial court. While the court's holding in its denial of summary judgment is not Earth-shattering, it does slightly alter the landscape on which the RIAA will work going forward.

The court's holding, requiring actual distribution for a showing of infringement, certainly weighs against the RIAA’s “making available” argument. This is not the first time that the argument has been shot down. The RIAA bases the “making available” argument largely upon a Fourth Circuit case called Hotaling v. Church of Jesus Christ of Latter-Day Saints. They can’t seem to find any other case that clearly says that infringement can occur without actual distribution. That case involved a library making microfiche copies of books and the decision seemed to be largely policy based. Its use by the RIAA has been unsuccessful in other cases and it failed in Perfect 10 v. Amazon where the plaintiff also tried to argue that “making available” constitutes distribution.

In Atlantic v. Howell, the court is essentially saying that the RIAA can absolutely prove that files were available from Howell’s computer via Kazaa. However, because there’s a question as to who made those files available through Kazaa, there’s a genuine issue of fact and summary judgment is inappropriate.

The court also emphasizes that infringement requires a copy to change hands between unauthorized parties. That express statement by the court is the biggest loss for the RIAA here, but it doesn’t stop their cause.

This holding is useful by other people in fighting summary judgment, but it may not save them from an ultimate finding of infringement. The court seemed to disagree with the Electronic Frontier Foundation’s opinion that MediaSentry’s downloading as part of the RIAA’s investigation cannot constitute distribution because MediaSentry is an authorized agent of the RIAA and therefore cannot infringe RIAA members’ own copyrights.

The bottom line is that Howell may make it more difficult for the RIAA to win on summary judgment, but it won’t completely get defendants off the hook. The “making available” argument is moving in the direction of being a confirmed loser. But, by this court’s logic, MediaSentry’s act of downloading may be sufficient to complete the act of distribution by the defendant. If that argument holds up at trial, the RIAA still wins.