Rewriting the rules of media sharing

Remember back in the day, when you’d buy a new CD, listen to it for a week or so nonstop, and then lend it to a buddy? My friends and I would do that all the time, and it would open us up to worlds of music we never would have discovered otherwise (and I still haven’t gotten back my copy of Liberal Animation). And yes, it meant buying more CDs, which the record labels absolutely loved. But now that the sharing of music has moved to a digital medium, well, they’re not so keen anymore.

The latest news from the RIAA comes from a summary judgement filing it made in the case of Atlantic v. Pamela and Jeffrey Howell. For a quick legal check: “Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for one party to prevail if the matter were to proceed to trial.” After considering the facts, Judge Neil V. Wake denied the motion.

A main point of evidence for the RIAA was that MediaSentry, an “investigative partner,” downloaded 12 copyrighted songs from Howell’s Kazaa account. To the RIAA, this means the Howells were distributing, ergo breaking the law. But Wake saw things a bit differently:

“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,” wrote the judge. “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.’”

Because there is no proof that anyone other than MediaSentry downloaded the songs, Wake rightfully denied this motion. It will still go to trial, but the denial of summary judgment is a sign of progress. It leaves open the important question of what constitutes distribution.

Rather than settling these matters in court, we should be reopening the discussion on media sharing. The model has changed. Digital is becoming dominant, and the old rules aren’t sufficient to govern this new medium. And until we have this discussion, we’re going to continue seeing reactionary lawsuits that deal with the symptom, not the cause.