An August 2007 ruling from an Arizona district court says that placing files in a folder shared over a P2P network constitutes "dissemination." Today, the same judge, in the same trial, reversed his own reasoning.

In a complete 180-degree backtrack from his own decision last August, and a clear victory for the defendants in the near term, an Arizona district court judge today dismissed record labels' motion for summary judgment against a man who claims certain music tracks were shared with others through the KaZaA network by accident.

"Section 106(3) of the Copyright Act of 1976 grants to 'the owner of copyright ...the exclusive rights to...distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending,"' cited Judge Neil Wake this afternoon. "The statute does not define the term 'distribute,' so courts have interpreted the term in light of the statute's plain meaning and legislative history. The general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords."'

It's the case of the Howells, an Arizona couple whose home computer was loaded with the P2P file-sharing system KaZaA, which was scanned by an investigative firm hired by the recording industry, MediaSentry. The firm found evidence of some 2,329 files in violation of copyright, and apparently in a sharable form by virtue of being placed in KaZaA's shared files folder.

But Mr. Howell claims he didn't put those files there intentionally, so he didn't mean to share them with the general public. At first, the argument didn't wash, and Judge Wake granted the labels' motion for summary judgment. But Howell filed a motion to reconsider, this time submitting screen shots that Judge Wake's ruling today stated appeared to show KaZaA accessing non-shared folders, even though the program's preferences show those folders as not being listed as shared. And since that time, the Electronic Frontier Foundation filed an amicus brief on the Howell's behalf.

Rather than reconsider the case in light of the new screen shot evidence, however, Judge Wake apparently reconsidered the entire merits of the case at hand. The question is whether making a copy of a copyrighted track available for download or "dissemination" constitutes the same thing as dissemination, in the absence of any way to explicitly prove that dissemination takes place.

Judge Wake cited a critical 1997 case of one man -- a Mr. Hotaling -- versus a church institution which made photocopies of his book, then made those copies available to patrons of its church's libraries across the country -- but in microfiche form only. No library kept records of its patrons' using the microfiche, so the plaintiff in that case couldn't prove those libraries actually disseminated his work. But the court at that time ruled that if all a library had to do to protect itself from infringement claims was not keep records, no library would ever keep records on anyone, and they could unjustly profit from anyone's works.

That would seem to be the substantiating factor behind Judge Wake's August 2007 decision: that there's other ways to make it obvious that dissemination takes place behind pointing to records or an audit trail.

"District courts have struggled to determine whether the requirement to prove actual dissemination or [the situation defined by the] Hotaling [case] should apply to cases of alleged copyright infringement through online file-sharing," Judge Wake wrote today. The problem is a tricky one, having to do with correlation: The library in that 1997 case legitimately owned the books it was photocopying for others, whereas Mr. Howell's copy of KaZaA isn't exactly a library by legal standards.

If Howell isn't the owner of the files in question, the judge reasoned, then the legal precedent that plaintiffs were arguing does not apply. In a strange twist of semantics, he concluded, for you to "distribute" something illegally or without license, it has to be yours to distribute.

As the judge's conclusion reads today, "The court agrees with the great weight of authority that [17 USC Sec.] 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute 'copies' of their works to the public 'by sale or other transfer of ownership, or by rental, lease, or lending.' ...Unless a copy of the work changes hands in one of the designated ways, a 'distribution' under [Sec.] 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution." [emphasis ours]

"The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights," the judge later added. "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."

Howell was actually claiming many of those files were his -- purchased legitimately. But if the court were to agree with that, Howell would have hung himself with his own argument. It turns out his saving grace is the fact that there's doubt over the files being his. Now that Judge Wake has changed his tune, don't be surprised if Mr. Howell changes his in perfect harmony.