TipAdept Dot Com

A federal court has dealt a body blow to the recording industry's efforts to sue people who use peer-to-peer software to download music from the Internet. In fact, says one copyright lawyer, the P2P decision could mean the end of the Recording Industry Association of America's litigation strategy.

In Atlantic Records v. Howell, U.S. District Court Judge Neil V. Wake rejected the RIAA's theory that the defendants distributed music files merely by making them publicly available through the Kazaa P2P application. Contrary to the music industry's theory, "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution," the judge wrote.

The facts of the case are fairly typical. MediaSentry, the private investigator that researches these matters for the RIAA, used Kazaa to identify 4,000 files available from the Howells' computer, with 54 of them copyrighted music files. MediaSentry took screenshots showing the files available and downloaded 12 of the songs.

'Gold Standard'

The defendants, Jeffrey and Pamela Howell, say they made legitimate copies of their CDs for personal use and they didn't know Kazaa was making them public. Asked in a deposition if he was sharing music files online, Jeffrey Howell said, "I was not, no. The computer was, but I was not. The computer in some form ... made files that I did not know available on the Internet."

"This case harmonizes everything. It sets the gold standard," said Ray Beckerman, a copyright attorney with the New York firm of Vandenberg & Feliu and author of the Recording Industry v. The People blog, in a telephone interview. "Other district courts will follow it. Appeals courts will follow it."

In the Howell case, the recording industry now has to "show he actually disseminated to members of the public -- and that he did...