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Download Ruling May Raise Burden for Record Labels

By Thomas B. Scheffey
March 27, 2008
Those who download music to their computers now have two unlikely heroes. One is Janet Bond Arterton, a federal judge who sits in New Haven, CT. The other is Christopher David Brennan, a young Waterford, CT, resident who, among other artists, has reportedly downloaded songs by Billy Joel and Hootie and the Blowfish. Brennan is one of about 30,000 people who have been sued by the music industry in recent years for allegedly taking music from the Internet without paying for it.

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.

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