by Shana Dines
In a previous article about the lawsuit against Jammie Thomas, we discussed the arguments on either side of the "make available" theory of copyright infringement. Just this week, Judge Davis granted the pending motion for a new trial. The jury award of $222,000 in the Thomas case was considered the pride of the Recording Industry Association of America (RIAA).
While this decision strikes a definitive blow to the RIAA's campaign to sue illegal file-traders for copyright infringement, there are still plenty of other cases pending on similar issues. In another case that seemed to be leaning towards the defendants, the RIAA ultimately achieved a small victory earlier this month.
The latest victims are the Howells, a husband and wife from Phoenix, AZ who decided to proceed in court without an attorney. They had been faring relatively well for the past year, successfully blocking two summary judgments, however, the decision was ultimately ill-conceived.
The Howells are now faced with a fine of $40,850 for destroying evidence that was critical to the case against them.
The case of Atlantic Records versus Pamela and Jeffrey Howell seemed to be leaning in favor of the defendants just months ago. In April, Judge Neil V. Wake of the United States District Court for the District of Arizona denied a summary judgment for Atlantic Records.
Like Ms. Thomas' case, the RIAA's cause of action here depended on the acceptance of the make available theory of copyright infringement. The RIAA uses the tech-company MediaSentry to track KaZaA file-sharing activity. MediaSentry was able to identify the Howells as the owners of a user account that had at least 54 copyrighted songs in a shared folder.
In his deposition, Mr. Howell claimed that he did use KaZaA to share files, but that he had not placed the music files into the shared folder and had not authorized the sharing of those song files. He maintained that, through some technical glitch, the KaZaA program was granting public access to files on his computer without his consent.
At the time of this motion, Judge Wake did not believe that Atlantic Records had established unlawful distribution of their copyrighted song files. The fact that the songs were made available to the public in a shared folder was not the same as showing actual distribution. Judge Wake said, "Unless a copy of the work changes hands in one of the designated ways, a 'distribution' under §106(3) has not taken place."
Judge Wake further held,
" The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act."
Despite the court's earlier favorable treatment of the Howells, in August the court determined that Jeffrey Howell had destroyed evidence by performing a KaZaA uninstall, a hard drive reformat, and a broader system wipe on his computer. Judge Wake declared that this "brazen destruction of evidence" was done in bad faith despite repeated warnings against such actions.
He issued sanctions against Mr. Howell as a default judgment in the amount of $40,500 for the minimum statutory damages that Atlantic Records is entitled to, plus $350 for their filing fees. The court also issued a permanent injunction against Mr. Howell to keep him from ever downloading or distributing Atlantic's copyrighted material without permission again. Mrs. Howell was dismissed without prejudice, meaning a suit could later be re-opened against her.
The change in Judge Wake's attitude toward the Howells shifted dramatically from the start of this case to the unforgiving conclusion. What started as a promising step against the RIAA's "make available" theory ended in a harsh lesson to future defendants against self-representation.