Atlantic Recording Corp. v. Howell

554 F.Supp.2d 976

ATLANTIC RECORDING CORPORATION, et al., Plaintiffs, v. Pamela and Jeffrey HOWELL, wife and husband, Defendants.

No. CV-06-02076-PHX-NVW.

United States District Court, D. Arizona.

April 29, 2008.

COPYRIGHT MATERIAL OMITTED

Amy Bauer, Richard Lance Gabriel, Holme Roberts & Owen LLC, Denver, CO, Michael A. Cordier, Ira M. Schwartz, Deconcini McDonald Yetwin & Lacy PC, Phoenix, AZ, Timothy M. Reynolds, Holme Roberts & Owen LLP, Boulder, CO, for Plaintiffs.

Pamela Howell, Scottsdale, AZ, pro se.

Jeffrey Howell, Scottsdale, AZ, pro se.

Fred Von Lohmann, Electronic Frontier Foundation, San Francisco, CA, Kathleen Genevieve Williamson, Law Office of Williamson & Young PC, Tucson, AZ, for Defendants.

ORDER

NEIL V. WAKE, District Judge.

The court has before it Plaintiffs' Motion for Summary Judgment. (Doc. #30.) The Motion will be denied for the reasons set forth below.

I. Background

This is a suit for copyright infringement brought by seven major recording companies against Defendant Jeffery Howell ("Howell") and his wife, who proceed pro se. At 1:52 a.m. Eastern Time on January 30, 2006, the recording companies' private investigator, MediaSentry, logged on to the KaZaA file-sharing system and detected a user account with over 4,000 files available for download. (Doc. # 31, Ex. 11 ¶ 9.) MediaSentry took screenshots (images of a computer screen display) showing the files that were available for download from the user's computer, many of which were sound recordings. (Doc. # 31, Ex. 10.) It is uncontested that the recording companies own registered copyrights in of those sound recordings. MediaSentry downloaded 12 of the copyrighted songs from the computer. (Doc. # 63, Ex. A ¶ 6.) The recording companies' expert determined that the music had originally been downloaded from other users on the Internet. (Doc. # 31, Ex. 12 ¶ 22.)

The recording companies traced the computer to Howell and his wife and filed this action for copyright infringement. At the close of discovery, they moved for summary judgment that Howell violated their exclusive right to distribute the 54 copyrighted sound recordings. They attached seven pages of their April 4, 2007 deposition of Howell. Their briefs maintained that Howell admitted at the deposition that "all of the sound recordings [at issue] were in the KaZaA shared folder that he created on his computer," (doc. # 30 at 8), and that he made "the affirmative choice to use KaZaA to share files" (doc. # 38 at 3). The portion of the deposition that the recording companies provided appeared to support their allegation and Howell did not submit any additional portions of the deposition with his response. (Doc. #31, Ex. 9.) The court granted the motion for summary judgment. (Doc. # 43.)

Howell then submitted a motion to reconsider, asserting that he had never stated that the sound recordings were in the publically accessible KaZaA folder ("shared folder") and attaching portions of the deposition that appeared to contradict the recording companies' claim that he had admitted to sharing the sound recordings. (Doc. # 47.) The court granted his motion and called for further briefing. Additional portions of the Howell deposition later submitted by the recording companies showed that Howell had not, in fact, admitted to placing the sound recordings in the KaZaA shared folder:

Q: [Y]ou would agree with me that when KaZaA ran on your computer, you were automatically sharing your KaZaA files with anyone who wanted to download them?

[Howell]: Yes.

Q: And this includes any songs that you copied from your own CDs on to your computer that were placed in your KaZaA folder?

[Howell]: No. That should not have ever happened.

...

because it should have only been sharing the shared folder and in the shared folder was pornography and free to the public software, e-books.

Q: And why didn't you place your music in your shared folder?

[Howell]: Because that's not where it belongs. It belongs in my music folder.

...

Q: Now did you—were [the files being shared] files that you put in your KaZaA program but not in a shared folder?

[Howell]: No. They had never had any—there was nothing to do with KaZaA whatsoever.

...

That's what I've been pointing out ever since the very first conversation. It has files from my personal folder, from my music folder, from my shared folder and god knows else where.

...

Q: [A]nd you acknowledge now that you were sharing sound files on KaZaA for anyone to download?

[Howell]: I was not, no. The computer was, but I was not.

...

The computer in some form, all right? Whether it was a malfunction of the program or a tampering by a third party or even Windows itself going back to a previous edition or whatever like that—made files that I did not know available on the Internet—

...

—which included music folder.

(Doc. # 80, Ex. A at 145-49.)

To summarize, Howell admitted that he created the KaZaA account and username that MediaSentry identified, that he installed the KaZaA file-sharing program on the computer, and that he authorized certain types of files to be shared through KaZaA. (Doc. ##31, Ex. 9 at 164-65, 208-10; 63, Ex. C at 139.) However, he denied having placed the copyrighted sound recordings in the KaZaA shared folder or having otherwise authorized sharing of those files. (Doc. # 63, Ex. C at 170.) According to Howell, the screenshots taken by MediaSentry show that the KaZaA program was, without his authorization, granting public access to files on his computer that were not in the shared folder. (Id. at 173.) He also testified that there were other people who had access to the computer and the KaZaA user account that could be responsible for the recordings having been publicly available for download. (Id. at 99, 105, 162.) He further denied that he originally downloaded the copyrighted sound recordings through KaZaA. (Doc. #80, Ex. A at 182-83.) Rather, he claimed to own compact discs containing the sound recordings at issue and to have copied the recordings to his computer for personal use. (Id. at 114-116.)

II. Standard of Review

Rule 56(c), Fed.R.Civ.P., provides that summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A "genuine issue" of material fact will be absent if, "viewing the evidence and inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law." Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th Cir. 1977); see also Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1111 (9th Cir.2001). Any supporting facts presented by the parties must be admissible into evidence. Fed.R.Civ.P. 56(e). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nature of this responsibility varies, however, depending on whether the movant or the non-movant would bear the burden of persuasion at trial with respect to the issue at hand. If, as here, the burden of persuasion at trial would be on the party moving for summary judgment, that party may satisfy its initial burden of production only by showing that it would be "entitle[d] ... to a directed verdict if the evidence went uncontroverted at trial." Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.1992); cf. Berry v. Bunnell, 39 F.3d 1056, 1057 (9th Cir.1994) ("A directed verdict is proper when the evidence permits only one reasonable conclusion.").

Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion "may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate against a party who "fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (nonmovant's showing of "some metaphysical doubt" as to material facts insufficient); see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). Summary judgment is not appropriate when the nonmoving party identifies or produces evidence from which a reasonable juror, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor. United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir.1999).

III. Analysis

Under 17 U.S.C. § 501(a), "[p]laintiffs must satisfy two requirements to present a prima facie case of direct infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive right granted to copyright holders under 17 U.S.C. § 106." A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001).

A. Plaintiffs Have Established Copyright Ownership

The recording companies' ownership of valid copyrights to the sound recordings is...