The couple said that their Kazaa account was "not set up to
share" and that they put music files there so that they could use
them on mobile devices, but in a summary judgment the court threw
out their case.
US District Judge Neil Wake said that record label Atlantic did
not have to prove that the couple, Pamela and Jeffrey Howell,
physically distributed individual files. "Several cases suggest
that Kazaa users commit direct infringement by employing the Kazaa
program to make their collections of copyrighted sound recordings
available to all other Kazaa users," said Wake.
"[According to US law the] distribution of copyrighted material
need not involve a physical transfer. '[T]he owner of a collection
of works who makes them available to the public may be deemed to
have distributed copies of the works' in violation of copyright
law,", said Wake, quoting US law.
He said that a 2006 case involving Warner records "equated the
placement of items in a Kazaa shared folder with 'publication' as
defined by [the law] because it is a distribution, or an offer of
distribution 'in which further distribution, public performance or
display is contemplated.' It is no defense that a Kazaa user did
not directly oversee the unauthorized distribution of copyrighted
material," said Wake.
Jeffrey Howell said that he should not be punished because he
had original CDs of the music involved at home, and presented
photographs of his collection to the court to prove it. Wake said
that that was immaterial.
"The question is not whether Howell owned legitimate copies of
some of the sound recordings on CD, but instead whether he
distributed copies of the recordings without authorization," said
the judge. "Howell’s right to use for personal enjoyment
copyrighted works on CDs he purchased does not confer a right to
distribute those works to others without Plaintiffs’
authorization."
"As he admitted that the sound recordings were 'being shared by
[his] Kazaa account,' Howell is liable for distributing them in
violation of the recording companies’ exclusive right. Even if
Howell believed that ownership of the CDs conferred a right to
distribute their contents freely via Kazaa, that mistaken
impression is no defense to liability," said Wake.
Atlantic sought the minimum damages available, which were $750
per song. The court awarded those damages, which totalled $40,500,
plus $350 in costs.
