April 29th, 2008

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When Pornography Is Your Best Defense

This case, Atlantic Recording Corporation v. Howell, is important because it rejects the argument that merely making your hardrive available without intending to illegally distribute someone else's copyrighted material is sufficient to sustain a claim of infringement.

In the instant case, Atlantic Recording Company (ARC) hired an investigator to monitor Kazaa. The ARC investigator detected ARC material available in the shared content file in Howell's computer, and downloaded several songs to which ARC holds the copyright. Howell maintained that he did not place his music library in the shared directory. He joined Kazaa to obtain free pornography, ebooks, and other material legal to obtain via Kazaa. Howell maintained that the Kazaa software moved additional material into the shared file without his knowledge or consent.

ARC moved for summary judgment on the grounds that even if Howell was telling the truth, the fact that he made the music available for distribution by having it on a hard drive and using Kazaa constituted infringing distribution under the statute. The court rejected this broad "making available" claim, holding that the word "distribute" in the statute requires active distribution of the file, not merely making it available for distribution.

It's a good legal holding, but all the more amusing because defendant asserted on deposition under oath that his primary purpose and intent was to obtain free porn.

I keep thinking of this interchange from The Simpsons

"So you were coming from 'Moe's.' What sort of an establishment is this 'Moe's.'"

Don't say it's a bar. Don't say it's a bar. "Pornography. I was buying pornography."