EFF argues placing files in 'Shared Folder' isn't sharing

By Scott M. Fulton, III, BetaNews

January 15, 2008, 1:26 PM

Can the act of file sharing take place "passively," without the users' direct involvement; and if so, can they no longer be held liable for copyright infringement? That's the question a US district court is preparing to consider.

Next week, an Arizona district court will hear arguments in the ongoing case of the Howell family of Scottsdale, who last August was found to be illegally distributing 2,329 MP3s in violation of copyright. At that time, the judge in the case ruled that the fact that those MP3s appeared in Mr. Howell's shared music folder for his Kazaa program was proof enough that he had intention to share them, and that no evidence needed to be uncovered of actual subsequent file transfers.

Recording studios are seeking summary judgment in the case against the Howells, but now the Electronic Frontier Foundation has stepped up in the family's defense. Mr. Howell had argued that he had actually legally purchased the CDs from which all 2,329 of those tracks had been ripped, and that some malicious user had found a way -- without his knowledge or intervention -- to move those files into the Kazaa shared folder.

Rather than concentrate on the matter of why a hacker would go to that much trouble when the same files were probably available through Kazaa elsewhere, the EFF will argue the question of whether positioning files on one's own hard drive constitutes a virtual act of sharing. More specifically, the Foundation will examine whether that act constitutes direct copyright infringement, as indicated in an amicus brief filed last Friday.

From a legal perspective, the question boils down to whether storing something in a publicly accessible location constitutes publication, and whether that publication is essentially the same as distribution. Congress has already seen the two as separate states, the EFF says.

"Plaintiffs [in the recording industry]...point to the statutory definition of 'publication' (which expressly encompasses 'offering to distribute')," states the EFF's amicus brief (PDF available here), "asserting that 'publication' and 'distribution' have been treated as synonymous for some purposes by some courts and therefore that the definition of 'publication' expands the meaning of 'distribute.' Contrary to Plaintiffs' view, the inclusion of 'offering to distribute' in the definition of 'publication' actually underscores the fact that Congress knew how to reach mere offers when it wished to do so."

But if the court does conclude that the two are the same, then the EFF points out another pitfall: that US law already defines "publication" to imply the distribution of something you can hold in your hand.

"If 'publication' and 'distribution' are truly synonyms, then Plaintiffs' [RIAA] case fails outright, because the legislative history makes it clear that 'publication' is limited to distribution of tangible, material objects," the EFF continued. As Congress has already put forth, it cited from case law, 'any form or dissemination in which a material object does not change hands - performances or displays on television, for example - is not a publication no matter how many people are exposed.' Defendants here are not accused of distributing physical goods."

The judge in the case has already ruled that positioning a file in a sharable location is effectively the same as sharing, and is therefore open to infringement. So one very critical question now becomes whether the EFF's arguments may come too late for the Howells.