Putting files in shared folder infringed, says US court

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.