I love this news (from C|Net's News.com site): Court rejects RIAA's 'making available' piracy argument
Originally Posted by C|Net's news.com blog by Steven Musil
The recording industry's music piracy fight was dealt a setback Tuesday when a federal judge rejected the RIAA's "making available" argument in a lawsuit against a husband and wife accused of copyright infringement.
In Atlantic v. Howell, Judge Neil V. Wake denied the labels' motion for summary judgment in a 17-page decision (PDF), allowing the suit to proceed to trial. The argument--that merely the act of making music files available for download constituted copyright infringement--has been the basis for the Recording Industry Association of America's legal battle against online music piracy.
"The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," wrote the judge in his order. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."
EFF staff attorney Fred von Lohmann called the order the "most decisive rejection yet of the recording industry's 'making available' theory of infringement."
The order is a bit of an oddity in that it's a reversal of an order Wake issued in August, in which he granted the RIAA's summary judgment and fined the Howells $40,850 in penalties and court costs. However, the Howells appealed and the judgment was later vacated.
As best I can read it the couple is still being sued, and may still lose, but they won't lose simply because they made a copy of a song available. The RIAA will have to prove that someone downloaded one of the copies of the songs that was made available and that may be a bit more effort for them to come up with proof of.
It'll be interesting to see how this progresses, but anytime the RIAA loses, even if it's just a little bit, I think it's a good day.