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Judge rejects claim RIAA previously won

Talk about a case going full circle: U.S. District Judge Neil V. Wake has rejected the RIAA's motion for summary judgment in its claims against Pamela and Jeffrey Howell, completely reversing the ruling he'd made last August. The new ruling, dated Monday but released today, sets a high bar for proving infringement claims against file-sharers, potentially spelling trouble for Hollywood as well as the record companies. The decision won't control other courts, but it adds to the growing stack of rulings that make cases against file-sharers more difficult to win.

In particular, Wake held that making something available to others on a file-sharing network does not violate the copyright owners' exclusive distribution rights. The RIAA had sought damages for 42 songs in Jeffrey Howell's shared folder, and it presented evidence that its contractor, MediaSentry, had downloaded 12 of them. For the 30 not downloaded by MediaSentry, Wake ruled that the RIAA hadn't shown any evidence of infringement. It could be argued that putting a song in a shared folder is an attempt to infringe, but the attempted infringement isn't illegal, the judge wrote. And for the 12 songs MediaSentry downloaded, Wake said, there was some dispute over whether Howell was responsible for them being in his shared folder. This came despite Howell's admission that he installed Kazaa on his computer, created the user name in question, and kept electronic books, free software and adult material in his shared folder for others to download.

In effect, Wake appears to demand proof from the RIAA that someone actually downloaded each song at issue, and that the defendant deliberately put those tracks into his or her shared folder. He also suggested that such a defendant might not be liable for direct infringement, because he or she wasn't making a copy -- the downloader was. Instead, the judge wrote that such behavior might constitute contributory infringement, which the RIAA didn't allege in the Howell motion. Proving contributory infringement would require that Howell not only assisted in the unlawful copying, but also that he knew it was happening. These aren't insurmountable hurdles for the RIAA, but they're not speed bumps, either.

Corynne McSherry, a staff attorney at the EFF, said the recent rulings show that "the courts are stepping in where they can to at least seriously consider these cases and pay attention to them." It's happening because, after four and a half years and thousands of lawsuits, the fraction of cases that have been contested are finally progressing far enough to yield rulings. It's an expensive proposition to defend oneself against one of these lawsuits, after all. (The Howells, in fact, are representing themselves, although they've received an important assist from the EFF's Fred von Lohmann in fighting off the latest motion.) Plus, the questions raised can be technical and complex as courts try to map decades-old laws and precedents to the Internet. But they're important ones that will help define the boundaries of copyrights in the Digital Era. It's worth noting that the first time the RIAA sought summary judgment against the Howells, Wake held that "the mere presence of copyrighted works in a shared folder is enough to trigger liability." He vacated the ruling at the Howells' request, saying later that RIAA lawyers had omitted critical parts of Howell's deposition testimony.

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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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