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A major test of 'making available' has now been destroyed. The RIAA is now likely to triumph in Atlantic v. Howell, based on the destruction of critical evidence. The case pitted the major labels against the husband-and-wife team of Pamela and Jeffrey Howell, who admitted downloading Kazaa but denied intentionally sharing their digitized content. Additionally, the Howells argued that simply making content available online does not constitute infringement, and questioned whether RIAA-induced downloads constituted meaningful evidence.
That is an important legal question, and a potentially lethal one for the trade group. The RIAA does not have the capability to observe and record infringing downloads; it can only force the uploading of content from shared folders through agents like MediaSentry. Earlier this year, presiding judge Neil V. Wake rejected a motion by the RIAA for summary judgment, and strongly questioned the making available logic. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution," Wake opined.
Fast-forward
to the present, and the RIAA determined that Jeffrey Howell had
destroyed critical information on his hard drive related to the case.
That includes a Kazaa uninstall, a hard drive reformatting, and a
broader system wipe, according to the group. "The Court finds that the
destruction of the evidence after repeated and explicit
warnings
about the obligation to preserve evidence was in bad faith and
therefore warrants appropriate sanctions," Wake expressed, though the
exact ramifications have yet to be determined.
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