In September, the U.S. Court of Appeals for the Eighth Circuit in St. Paul, Minnesota, rendered a seemingly routine opinion, reinstating an award of $222,000 to the Recording Industry Association of America in a case that it brought against a Minnesota woman, Jamie Thomas-Rasset, for copyright infringement by downloading and sharing 24 songs on the file-sharing service Kazaa.  But the case—the first in the United States involving file-sharing copyright infringement that was brought by record labels and went before a jury—certainly had the potential to be a landmark case that would establish definitively the legal implications of participating at all in file-sharing.

Since the rise of Napster in the late 1990s, and the widespread growth of similar file-sharing services soon after, record companies have vigorously asserted their rights under the Digital Millennium Copyright Act, which essentially provides copyright owners (here, the record companies) with a mechanism for tracking down and complaining to Internet Service Providers that may be hosting illegal file-sharing on their networks.  Since the passage of the Copyright Act in 1998, record companies have sent cease-and-desist letters and even filed suits against countless numbers of people—in one case, even a 12-year-old girl—who have illegally downloaded copyright-protected music.  In some cases, the damage awards have been enormous, including a verdict for $675,000 against a Boston University, which one judge called “unconstitutionally excessive.”

Given these aggressive tactics, file-sharing services, and those who might be liable for the illegal activity, such as universities, are heightening measures to protect themselves against legal action.  Stanford has an entire webpage devoted to frequently-asked questions on file-sharing, and mentions that some universities even go so far as to search for illegal files being shared on their networks.  In Germany, the popular file-sharing site RapidShare was found to be a legal service, but the court ordered that it has to install certain monitoring procedures for the site to remain operational.

Although the Eighth Circuit had the opportunity to rule on the issue of whether merely “making available” copyrighted content on file-sharing services was a violation of the Copyright Act, it declined to do so.  Currently, a plaintiff must prove “actual distribution” in order to show a violation of the Copyright Act, so adopting the “making available” standard would significantly lower the plaintiff’s burden under the Copyright Act, and thereby make a much higher number of file-sharers susceptible to legal action.  The Court ruled that “Important though the ‘making available’ legal issue may be to the recording companies, they are not entitled to an opinion on an issue of law that is unnecessary for the remedies sought or to a freestanding decision on whether Ms. Thomas-Rasset violated the law by making recordings available.”  Given the complexity of this issue, it does not appear to be going away anytime soon.