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The RIAA loses (or not)

There's been a lot of discussion in the blogs lately about court rulings that could complicate the RIAA's lawsuit campaign against illegal file-sharers. The three limit, to varying degrees, the record companies' ability to argue that p2p users violate copyrights merely by putting songs into folders from which other users could copy. The best post is (not surprisingly) from William Patry's copyrights blog, which summarized and analyzed the decisions out of New Haven, New York and Boston. It's also worth reading this post by EFF's Fred von Lohmann (make sure to follow the links to this earlier, related post), and this one by Eric Bangeman of Ars Technica.

Those entries cover the legal issues far better than I could. However, they don't discuss how little relief the rulings may give to those sued by the RIAA. As the Jammie Thomas trial demonstrated, the RIAA's case doesn't rely on the allegation that a defendant merely put songs in his or her shared folder. Its anti-piracy contractor, MediaSentry, actually downloads songs from the target's shared folder. That enables the RIAA to allege that the songs were reproduced and transmitted without the labels' permission.

The MediaSentry evidence seems pretty damaging, if the RIAA can get past the challenge of identifying the person (not the IP address) who logged into the file-sharing network and enabled MediaSentry to make the copies. Still, it raises at least a couple of larger questions. One is whether MediaSentry's evidence will stand up to increasingly aggressive challenges, including accusations that it's an unlicensed investigator. The more interesting one, though, is whether copyright law was written in a way that doesn't cover songs uploaded through p2p networks. From a policy standpoint that seems kind of nutty -- after all, uploaders (e.g., people who put items into shared folders) are the ones who breathe life into file-sharing networks and enable rampant online piracy. But the reasoning behind that point of view strikes me (a non-lawyer) as, well, not nutty.

Patry and von Lohmann both have argued that transmitting a song through a file-sharing network doesn't amount to a distribution. Von Lohmann contends that the exclusive distribution right of copyright holders -- "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" -- covers only the distribution of physical objects. As much as I like the notion of the Internet as a series of tubes, I have a hard time envisioning solid objects passing through it.

I think both Patry and von Lohmann would argue that transmitting a song through a file-sharing network doesn't constitute a reproduction, either. Again, the law's language -- "to reproduce the copyrighted work in copies or phonorecords" -- seems to require the creation of a fixed, material object to constitute an infringement. Downloading songs from someone else's shared folder onto your hard drive clearly fits that description, but having something downloaded from your shared folder doesn't. The uploader isn't the one making an unauthorized copy, the downloader is. (Unless, of course, the file uploaded was an unauthorized copy in the first place.)

If that interpretation were to become the law of the land, the RIAA would be limited to suing downloaders -- a more difficult task than targeting those who share files, but hardly an impossible one. Many of the older song files floating around p2p networks can be traced through their hashes back to copies made by users of the original Napster and other defunct file-sharing networks. There may be other tell-tale evidence in a song's metadata. But if the legal landscape reached that point, it's a safe bet that music, movie, software and game companies would press Congress to expand the exclusive rights of reproduction and distribution to cover p2p transmissions. They might even succeed in persuading lawmakers to outlaw attempted copyright infringement (something they'd previously sought for criminal piracy). And isn't that what "making available" is? Attempting to infringe?

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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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