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April 27th, 2008 Copyright 1 Comments

    A recent pair of federal district court decisions are split on whether making copyrighted songs available for download violates copyright laws even when there is no proof that the copyrighted works were ever downloaded under 17 U.S.C.A. Sec. 106.  An original article on this news is here:    http://news.lp.findlaw.com/ap/high_tech/1700//04-04-2008/20080404145001_26.html.  The two cases are:  Elektra Entertainment Group, Inc. v. Barker and London-Sire Records, Inc. v. Doe.
    These two cases are virtually identical in factual scenarios.  In each case a set of Defendant’s had copyrighted songs on their harddrives that were made available to anyone on the internet via Peer to Peer software – a common scenario among mp3 owners.  In the past decade, there have been an enormous amount of complaints filed in courts by record companies against individuals who distribute their copyrighted works.  In many of these cases the record companies are successful either through out-of-court settlements or decisions on the merits of the case.  However, what is interesting in these cases is that there was no proof available that the songs were ever downloaded. Therefore, the record companies were arguing that merely making the songs available through peer to peer software violates copyright law.
    The crux of this issue in both of the cases came down to statutory interpretation of what is the meaning of "distribution" within 17 U.S.C.A. Sec. 106(3).  Sec. 106 states:

"The owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (sec 3) to distribute copies or phonorecords of the work to the    public by sale or other transfer of ownership, or by rental, lease, or lending;"

    In both cases, the record companies were arguing that publication and distribution were synonymous.  There is a lengthy discussion that I will avoid on how each judge arrived at different decisions based on Supreme Court cases interpreting the terms "publication" and "distribution". However, the bottom line is that the Elektra case said publication = distribution and the other did not, resulting in practically diametrically opposed decisions.  The Elektra case held that making available for download was distribution for purposes of Sec 106(3), and the London-sire case said merely making a song available wasn’t enough.
    This split is important because it essentially comes down to the question of how much proof the record companies need to gather before they have a prima facie case of copyright violation.  It is also important for the millions of people out there on peer to peer networks sharing songs.  As both cases acknowledged, many people out there have validly obtained copyrighted songs through purchase and unknowingly offer them on the internet through peer to peer software.  Is it really fair to go after these people if you can’t truly show an active participation in the distribution?  Furthermore, is it fair to go after someone even if there’s no proof that they know they are offering the copyrighted song and that there is absolutely no proof that the song was ever downloaded by a third party? Either way, it is an interesting battle of statutory interpretation among the federal courts that could have important implications in the ever-present wrangling over mp3s and copyright violations.

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