Atlantic Recording Corp. v. Howell

The decision released yesterday in Atlantic Recording Corp. et al v. Howell has already received a lot of attention and will likely receive more. Here is a very helpful link to EFF's website that has a copy of the opinion and relevant documents in the case. The case is the fourth to be issued in the last few months on the making available question. I blogged about the three earlier opinions on April 3d and so will not repeat what I said there. The Howell opinion shares with the earlier opinions a refreshing willingness of district judges to deal with complicated questions where the posture of the case is less than ideal; in the case of the Howells this means pro se representation. Unlike the Supreme Court, which seems institutionally incapable of deciding hard IP cases, the district courts have been providing very distinguished service, efforts that should be appreciated, regardless of how one feels about the outcome.

In Howell, Judge Wake held, in denying plaintiffs' motion for summary judgment, that plaintiffs could rely on downloading by plaintiffs' outside investigative firm, MediaSentry, to establish infringement. This is the only part of the opinion I disagree with. Judge Wake wrote: "[T]he recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works." The phrasing of this sentence misstates what occurs and how that relates to plaintiffs' theories. The labels absolutely authorized MediaSentry to download files from Howell's shared folder, and then used that downloading as evidence that there had been an actual distribution. As the court itself wrote: "The recording companies' investigator, MediaSentry, did download 12 of the copyrighted sound recordings from Howell's computer. The recording companies assert that they have proven actual distribution for at least those 12 recordings." The court thus permitted the labels to use their investigator to engage in conduct that the labels then pointed to in proving their allegations. But authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement, as EFF pointed out.

The court attempted to get out of this fatal flaw in plaintiff's case by describing MediaSentry's efforts as "part of an [effort] to stop infringement. " So what? That still doesn't make authorized conduct unauthorized. I am aware that the Eighth Circuit thinks otherwise as did the Leadbetter court in the Western District of Washington last year, but both opinions are clearly erroneous. Copyright owners are certainly entitled to use investigators to discover infringement (assuming the investigators use lawful techniques), but having authorized the investigators' conduct they cannot then rely on that authorized conduct to prove a cause of action whose principle requirement is that the conduct be unauthorized. This is the only respect in which the Howell opinion is disappointing, but that disappointment is real and may cause real problems in future cases.

Now for the praise, which is considerable. First off, Judge Wake rightly required there to be an actual distribution of a copy to violate the distribution right. This is a plain meaning interpretation of the statute, although he did not go into an analysis of what the term distribution of a "copy" means in this context. Given that some courts have got that issue wrong, the lack of such a discussion may be a good thing. Particularly refreshing is the court's rejection of Hotaling, the Fourth Circuit's 1997 opinion that is a Karl Rove like gift that keeps on giving. Hotaling and the making available theory are both based on the same mistake: copyright plaintiffs should be excused from the ordinary burden of proving their case. But why? Because it is too hard? I think not: thousands of cases outside of copyright are dismissed every year because plaintiffs cannot come up with needed documents, testimony, or other evidence to make out what may well be a meritorious case. That is how the system works, though, for better or worse, and there is no reason at all for copyright owners to be placed outside of it. One sees this belief that copyright owners are different from other civil litigants in other areas too, such as efforts to make telcos do copyright owners' enforcement for them, or complaints that complying with the very provisions of the DMCA that copyright owners helped draft are too onerous for them, so they should be able to ignore them. From the beginning of copyright law, copyright owners have had the burden of proving their case, and rightly so. What we are seeing now in the making available cases and in other areas is not only an attempted reversal of centuries of copyright law, but of civil procedure as well. We have Judge Wake and others like Judge Nancy Gertner in the London-Sire case, and Judge Janet Arterton in Atlantic Recording Corp. v. Brennan to thank for resisting this effort.

I do not condone infringement of copyright whether by P2P or any other means, and believe that copyright owners have every right to bring litigation against those who have infringed their rights (and here I mean infringed an actual section 106 right, not fabricated rights like attempted distributuon). But I do believe that copyright owners must prove their case the old fashioned way, and that's why I applaud Judge Wake and others. Judge Wake's decision does not mean that the Howells will win at trial, and I do not know whether they should. But the Howells will now have the opportunity to at least have the case decided by the correct principles (assuming they can get a lawyer to represent them), and that's something we should all want.