EFF tries to quash labels' "making available" claims
By Nate Anderson
January 13, 2008 - 11:25PM CT

The music labels' case against Jeffrey and Pamela Howell has taken on mythic dimensions over the last few weeks after the Washington Post went a little nuts and implied that the labels were suing the couple for making personal rips of their CDs (it later corrected the story).

The truth is that Howells are being sued for having those rips in a shared KaZaA folder. But lost in the controversy over the RIAA's refusal to say that personal CD ripping is legal is the fact that the Howells aren't being sued for swapping songs with thousands of people around the world; instead, they are charged with making songs "available" for download.

In a new amicus brief, the EFF argues that there's no such thing as "attempted copyright infringement." Yet. The labels allege that 11 specific tracks were shared by the Howells, though the only evidence of such sharing was the fact that the files were in a shared folder and were also downloaded by the RIAA's investigative arm, MediaSentry (now SafeNet). According to the EFF, though, this simply is not evidence of actual copyright infringement.

The group takes no position on whether the Howells are guilty or not, but it does want to challenge this particular method of attack. Because the law specifically gives copyright owners the ability to control copies distributed "to the public," the music labels need to show that such distribution took place.

Ars Technica
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