Music Riles the Savage Beast

05-02-2008 | 05:39 PM EST

The old adage tells us that music soothes the savage beast. Well, it would seem that when the beast is the RIAA or the Atlantic Recording Corp and the music in question belongs to them, there ain't nothin' soothing.

On Monday, April 28, 2008, U.S. District Judge Neil V. Wake of Arizona released his decision in Atlantic Recording Corp. et al v. Howell. In this case, husband and wife, Jeffrey and Pamela Howell, are accused of sharing 54 songs over the Kazaa file-sharing network. By placing the music in a publicly shared folder on their computer, the Kazaa software was able to make the songs available to any other Kazaa user. The Atlantic Recording Corp hired and authorized RIAA investigators at MediaSentry to download the songs from the Howell's shared folder and used this instance of downloading as the proof that the Howells were illegally distributing the Atlantic Recording Corp's copyrighted work. To the delight of many Kazaa file-sharers, Judge Wake ruled that simply making copyrighted music available in a Kazaa share-folder doesn't equate to infringement. This is particularly noteworthy because, as Wired points out, "The 'making available' argument was essentially the RIAA's way of getting around the technical problem of proving that someone actually downloaded a shared file." Unfortunately, there was also a problematic second component to this ruling. Judge Wake did allow that 12 of the songs that RIAA investigators downloaded could be used against the Howells. This is a first of its kind ruling which has drawn attention from a number of experts, including William Patry Senior Copyright Counsel, Google Inc. In his personal blog, Patry writes, "The court thus permitted the labels to use their investigator to engage in conduct that the labels then pointed to in proving their allegations. But authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement, as EFF pointed out." Indeed, the Electronic Frontier Foundation (EFF) filed an amicus brief which, among other things, clearly takes this issue to task. So, where does that leave consumers and would-be file-sharers? It would seem that for the time being, making your music publicly available is a perfectly legal activity, but if anyone (especially anyone in the RIAA's service) downloads your music, even at the behest of the copyright owner, you might be going to court!

Also of RIAA note is the sudden and inexplicable increase in filesharing takedown notices from the recording industry that have recently been received by universities around the country. The most interesting part of this new RIAA onslaught is that, according to Wired, the universities themselves are saying that "many of the recent notices don't correspond to entries in traffic logs, which also don't show any overall increase in file sharing." So what's with the surge? Who can say. RIAA spokeswoman Liz Kennedy didn't respond to Wired's request for an explanation of the increased volume and claims that the notices were being sent without proof of infringement. In light of the Wake ruling, I can't help but wonder if the RIAA isn't secretly hoping that simply the act of opening a takedown notice or cease and desist letter can be used as evidence of illegal file-sharing.

On a final note, don't let the actions of the RIAA and Atlantic Recording Corp. get you down on the entire music industry. Earlier this week, record label, Magnatune, announced $11,570 in sales via the (in my opinion, absolutely fantastic) free software media player, Amarok, which Magnatune has been supporting since last July by way of hiring a software developer to work on Amarok. Moreover, Magnatune reported that it would donate 10% of sales made through Rythmbox back to the Rhythmbox project. As Creative Commons writes, this is "a practical win-win for users (ready access to DRM-free, CC-licensed music), developers, artists, and the whole movement."

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