One of the pillars of the RIAA's legal campaign has been its assertion that making a file available for download equates to copyright infringement under the copyright act. There have only been a couple of decisions addressing the question so far. One that came down today in Atlantic v. Howell is the biggest rejection yet to the RIAA's "making available equals infringement" argument, as a federal judge has denied the labels' motion for summary judgment, setting the stage for a trial later this year.
Atlantic v. Howell is unusual in that the husband and wife defendants are representing themselves. But the couple has some knowledgeable allies on their side—the EFF submitted an amicus brief on their behalf after the RIAA moved for a summary judgment.
The RIAA sued the Howells in 2006 for copyright infringement, and the couple responded by claiming that KaZaA was "not set up to share" and that the songs listed in the complaint were for "private use" and "for transfer to portable devices, that is legal for 'fair use.'" In a deposition, Jeffrey Howell later admitted to installing KaZaA on his PC, but said that the only files that should have been in the shared folder were "pornography and free to the public software, e-books." (Apparently, the porn was of the amateur, not-copyrighted variety.)
Their defense got off to a rocky start, as Judge Neil V. Wake initially granted the RIAA a summary judgment and awarded the labels $40,850 in statutory damages and court costs. The Howells appealed, citing their lack of knowledge about how KaZaA works, specifically the fact that their "personal files" were shared on the network, and the judge subsequently vacated the summary judgment.
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arstechnica 
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