Judge Rejects RIAA 'Making Available' Theory

NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."

Comments

Re:So uhm... why is this different?

[NewYorkCountryLawyer]

Why is making available rejected in this case but not in the Thom[as] case? Because the judge in the Thomas case made an error.

How are these different? No difference. The judge's instructions to the jury in Capitol v. Thomas should have been precisely what Judge Arterton said:

""[W]ithout actual distribution of copies.... there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court's finding "that distribution requires an 'actual dissemination' of a copy")".

Re:This is actually important...

[NewYorkCountryLawyer]

The RIAA also lost an uncontested case, the other day. This guy not only didn't have a lawyer, he didn't even show up. And the RIAA still lost because it neglected to include any facts, producing only a 'boilerplate' complaint that could have equally well applied to anyone the RIAA sued. I'd submit this as a story, but it's too much of a rehash now, so feel free to discuss both of the RIAA's losses here. It's the same case.

Re:Poll: What will the RIAA do now?

[NewYorkCountryLawyer]

I'm going with choice "b" b) Bury the judge in paper with a 'reconsideration' motion. I think I remember reading that they've tended to use this tactic in other cases and non-court situations too. They did indeed use that tactic in Atlantic v. Dangler and Interscope v. Does 1-y.

Re:Poll: What will the RIAA do now?

[NewYorkCountryLawyer]

D) Slightly change the wording of their argument and keep on truckin' They did indeed do that in Interscope v. Rodriguez, but for some reason they skipped out on actually serving the amended "argument".

Re:Smart Judge

[cpt kangarooski]

Well, the law is quite clear that no mental state has to be shown for civil copyright infringement. Even if you infringe purely by accident, and you always acted as reasonably and as carefully as possible, you can still wind up on the hook for infringement. So the court in this case is not going to find otherwise, but it would be a good part of a comprehensive legislative reform. (Though I think an intentional standard is somewhat high)