Download Ruling May Raise Burden for Record Labels

Court records show that Brennan's mother was served a notice last year, but neither she nor Christopher showed up in court or offered any defense for downloading 2,071 songs. Meanwhile, lawyers from the Stamford, CT, offices of Robinson & Cole filed polished briefs on behalf of music companies Atlantic, Elektra, Interscope, Sony BMG Music Entertainment and BMG Music, explaining why their clients should receive as much as $750 for each song that Brennan allegedly downloaded illegally. They accused him of copying, distributing and 'making the recordings available' for distribution to others and asked for a default judgment.

Arterton denied the request. She concluded that the copying and distributing counts were not well pled. And as a matter of law, Arterton ruled, 'making available' is a dubious count. The judge said it was not enough to show that Christopher Brennan had music files on his computer. She said the industry had to prove he shared them with others. 'Without actual distribution, there is no violation of the distribution right,' Arterton noted in her decision, citing copyright scholar William F. Patry. Atlantic Recording Corp. v. Brennan, 3:07cv232 (JBA).

Ray Beckerman, a partner in the New York law firm of Vandenberg & Feliu who has a blog called 'Recording Industry v. The People,' said in an interview that Arterton made clear that she believes the music industry needs to provide more proof in these downloading lawsuits. 'I think this is a very important decision,' said Beckerman. 'It's unlikely to have it come from a default decision.' Robinson & Cole's Brian E. Moran did not return repeated calls for comment.

When news of Arterton's decision began to spread, experts quickly predicted that it was going to complicate the Recording Industry Association of America's (RIAA) campaign against illegal downloading. Fred von Lohmann, of the Electronic Frontier Foundation, wrote on his company's blog that 'this ruling suggests that courts are not prepared to simply award default judgments worth tens of thousands of dollars against individuals based on a piece of paper backed by no evidence.'

Many of the infringement actions brought by the recording industry have been targeted at college students, most of who listen to downloaded music on iPods and other brands of MP3 players. In recent weeks, the RIAA has sent out waves of letters to students at universities. The settlement amount is typically a non-negotiable $3,750.

In her decision, Arterton faulted the complaint against Brennan for being based entirely on 'information and belief' and not on hard facts about his alleged downloading activities. She held that in the Second Circuit Court of Appeals, a default judgment can be granted only on 'well pleaded allegations of liability.' Arterton even highlighted two evolving defenses Brennan might have. Other federal courts are mulling whether statutory damages available under the Copyright Act, as compared to the actual money damages, are unconstitutionally excessive. In a pending 2006 New York federal case, UMG Recordings v. Lindor, CV-05-1095(DGT) (S.D.N.Y. 2006), Arterton noted, the plaintiff 's actual damages were 70 cents per recording, but the Copyright Act statutory damages sought 'are 1,071 times actual damages suffered.'

A second possible defense, Arterton wrote, is whether 'plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse.'

Arterton is not the first federal judge to register alarm at the lopsided nature of these record company lawsuits. Last year, U.S. District Court Judge S. James Otero, of California, wrote 'that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants.'

Other federal judges in Maine, New Mexico, Oregon, Oklahoma and New York have objected to sweeping actions against dozens of unnamed defendants at one time, based on sketchy factual proof. But Beckerman, the New York lawyer, said that Connecticut's Arterton has gone beyond expressing concern to setting an apparent tougher standard of proof for the recording industry. 'Six other judges had that issue before them, but never ruled on it,' Beckerman said. 'And those were cases where a client had paid for a lawyer.'

Court records show that Brennan's mother was served a notice last year, but neither she nor Christopher showed up in court or offered any defense for downloading 2,071 songs. Meanwhile, lawyers from the Stamford, CT, offices of Robinson & Cole filed polished briefs on behalf of music companies Atlantic, Elektra, Interscope, Sony BMG Music Entertainment and BMG Music, explaining why their clients should receive as much as $750 for each song that Brennan allegedly downloaded illegally. They accused him of copying, distributing and 'making the recordings available' for distribution to others and asked for a default judgment.

Arterton denied the request. She concluded that the copying and distributing counts were not well pled. And as a matter of law, Arterton ruled, 'making available' is a dubious count. The judge said it was not enough to show that Christopher Brennan had music files on his computer. She said the industry had to prove he shared them with others. 'Without actual distribution, there is no violation of the distribution right,' Arterton noted in her decision, citing copyright scholar William F. Patry. Atlantic Recording Corp. v. Brennan, 3:07cv232 (JBA).

Ray Beckerman, a partner in the New York law firm of Vandenberg & Feliu who has a blog called 'Recording Industry v. The People,' said in an interview that Arterton made clear that she believes the music industry needs to provide more proof in these downloading lawsuits. 'I think this is a very important decision,' said Beckerman. 'It's unlikely to have it come from a default decision.' Robinson & Cole's Brian E. Moran did not return repeated calls for comment.

When news of Arterton's decision began to spread, experts quickly predicted that it was going to complicate the Recording Industry Association of America's (RIAA) campaign against illegal downloading. Fred von Lohmann, of the Electronic Frontier Foundation, wrote on his company's blog that 'this ruling suggests that courts are not prepared to simply award default judgments worth tens of thousands of dollars against individuals based on a piece of paper backed by no evidence.'

Many of the infringement actions brought by the recording industry have been targeted at college students, most of who listen to downloaded music on iPods and other brands of MP3 players. In recent weeks, the RIAA has sent out waves of letters to students at universities. The settlement amount is typically a non-negotiable $3,750.

In her decision, Arterton faulted the complaint against Brennan for being based entirely on 'information and belief' and not on hard facts about his alleged downloading activities. She held that in the Second Circuit Court of Appeals, a default judgment can be granted only on 'well pleaded allegations of liability.' Arterton even highlighted two evolving defenses Brennan might have. Other federal courts are mulling whether statutory damages available under the Copyright Act, as compared to the actual money damages, are unconstitutionally excessive. In a pending 2006 New York federal case, UMG Recordings v. Lindor, CV-05-1095(DGT) (S.D.N.Y. 2006), Arterton noted, the plaintiff 's actual damages were 70 cents per recording, but the Copyright Act statutory damages sought 'are 1,071 times actual damages suffered.'

A second possible defense, Arterton wrote, is whether 'plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse.'

Arterton is not the first federal judge to register alarm at the lopsided nature of these record company lawsuits. Last year, U.S. District Court Judge S. James Otero, of California, wrote 'that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants.'

Other federal judges in Maine, New Mexico, Oregon, Oklahoma and New York have objected to sweeping actions against dozens of unnamed defendants at one time, based on sketchy factual proof. But Beckerman, the New York lawyer, said that Connecticut's Arterton has gone beyond expressing concern to setting an apparent tougher standard of proof for the recording industry. 'Six other judges had that issue before them, but never ruled on it,' Beckerman said. 'And those were cases where a client had paid for a lawyer.'