Technology and Digital Media Lawyer & Attorney : Davis Wright Tremaine Law Firm : Ecommerce, Outsourcing, Web 2.0

The District Court for Arizona in Atlantic v. Howell rejected the record industry's motion for summary judgment that contended that merely making available music files for downloading through a file sharing service constituted copyright infringement.  This reverses the court's previous ruling from August 2007.   The key issue is whether "making available" or "offering to distribute" copyrighted works, absent evidence of actual distribution, violates a copyright owner's exclusive distribution rights under Section 106 of the Copyright Act.  This is the third case this April to weigh in on this issue.  Howell joins the U.S. District Court in Massachusetts in London-Sire Records v. Doe in requiring more than merely making the infringing works available.  The Southern District of New York held the opposite in Elektra v. Barker.  Undoubtedly this is just the beginning so stay tuned.  For more information (albeit from an interested party), the EFF has a page addressing these issues. 

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A fascinating new lawsuit filed by the major record labels.   The record labels sued Project Playlist on Monday alleging that the website was guilty of massive infringement.  What's fascinating is that Project Playlist purports that it only allows it's users to make playlists of existing, legal music.   In other words, it claims to allow its users to make a playlist consisting of multiple links to music resident on servers elsewhere.  While this behavior has led to liability in Europe, it seems inconsistent with general linking law in the United States.   (although the movie studios have sued so called "leeching" websites like torrentspy.com).  It is unclear whether the record labels are alleging that Project Playlist is solely a leeching website like torrentspy or whether they are alleging more garden variety file sharing liability.  I haven't been able to get a complaint yet, but the reports suggest that the record labels are alleging both the standard Grokster inducement claim as well as Project Playlist's illegal reproduction of the music.  If it turns out that the only allegedly infringing activity of Project Playlist is the inline linking from user's playlists to third party hosted music, this could create new linking law since Project Playlist purports to do more than the typical leeching websites of the world.

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Legal threats are nothing new for The Pirate Bay, of course, as you can see from their helpful legal threats page. What appears to be new is that the Danish government wants an ISP to block access to the notorious site. According to Reuters,

A Danish court has ordered Denmark-based Internet service provider Tele2 to shut down its customers' access to the popular file-sharing site Pirate Bay, Danish IT magazine Computerworld reported on Monday. Computerworld said on its Web site that a court had ordered Denmark's Tele2 -- one of the Nordic country's largest Internet providers -- to close access to the site at the request of the International Federation of the Phonographic Industry (IFPI).

Never heard of TPB? Here's a quick overview from Wikipedia:

The Pirate Bay website allows users to search for and download torrent files (torrents), small files that contain the machine-readable information necessary to download the data files from other users. The torrents are organized in the categories: Audio, Video, Software applications, Games, and, for registered users only, Pornography. Registration requires an email address and is free; registered users may upload their own torrents and add comments to torrent descriptions. Downloading of data files from other users is facilitated by the Bittorrent tracker that also runs on a Pirate Bay server.

Never heard of BitTorrent? The bottom line is that it's a P2P file sharing technology:

BitTorrent is a peer-to-peer file sharing (P2P) communications protocol. BitTorrent is a method of distributing large amounts of data widely without the original distributor incurring the entire costs of hardware, hosting and bandwidth resources. Instead, when data is distributed using the BitTorrent protocol, each recipient supplies pieces of the data to newer recipients, reducing the cost and burden on any given individual source, providing redundancy against system problems, and reducing dependence on the original distributor.

Again, that's from Wikipedia.

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