Downloading Cases Hearten the Defense

Defense lawyers in copyright infringement cases brought by members of the Recording Industry of America ('RIAA') are trumpeting as victories three recent court decisions that rein in the association's campaign against individuals who make songs available for distribution on the Web.

'Making Available' Rejected

The rulings, all this past Spring, address the RIAA's allegation that individuals could be found liable for copyright infringement simply by making infringed songs illegally available for distribution, rather than actually distributing the songs themselves.

All three rulings rejected that argument, although in varying degrees.

Ray Beckerman, a partner at New York-based Vandenberg & Feliu who represents the defendant in one of the three cases, says the decisions 'knocked out the RIAA's lead theory.

'It's the only theory they have any evidence to support,' he says. 'It will have a huge practical effect.'

But Richard Gabriel, lead counsel for the RIAA and a partner at Denver-based Holme Roberts & Owen, disagreed. He says the rulings have created mixed opinions in the district courts that an intervening circuit court would probably have to resolve. (Note: Internet Law & Strategy published a Q&A with Gabriel by Enter- tainment Law & Finance Editor-in-Chief, Stan Soocher, in the February 2008 issue; see, www.ljnonline.com/issues/ljn_internetlaw/6_2/news/149962-1.html.)

In the past year, several courts have addressed whether a defendant could be held liable by making infringing songs available on file-sharing networks.

Barker

In October, in the first case of its kind to go to trial, a federal jury issued a $222,000 verdict against a Minnesota woman accused of illegally sharing 24 songs on the Internet. The jury had been instructed to consider her liable even if she simply made the infringing songs available. Virgin Records America v. Jammie Thomas, No. 06-1497 (D. Minn.).

In the recent rulings, judges have further scrutinized the issue.

In the first case, U.S. District Judge Kenneth M. Karas of the Southern District of New York denied the defendant's motion to dismiss in finding that the RIAA, under Section 106(3) of the Copyright Act, has a right to 'distribute protected songs.' Elektra Entertainment Group v. Denise Barker, No. 05-cv-7340 (S.D.N.Y.).

The March 31 opinion centered on the definition of the right to 'publication' in the statutory language. The RIAA, whose member recording companies are plaintiffs in the suit, had argued that their statutory right to 'publication' is the same as a right to distribute their copyrighted songs, and that the defendant, by making those songs available on the Internet, violated that right.

In his ruling, the judge agreed with the RIAA on the definition of 'publication.' But he stopped short of finding that the defendants violated that right by making songs available on the Internet.

'Nowhere does it say that making anything available is an exclusive right of a copyright holder,' says Andrew Bridges, a partner in the San Francisco office of Chicago's Winston & Strawn who filed an amicus brief in the case on behalf of the Computer & Communications Industry Association and the U.S. Internet Industry Association. 'The court said that making available is not itself a right.'

London-Sire Records

On the same day, U.S. District Judge Nancy Gertner of the District of Massachusetts granted a motion to quash subpoenas against two students at Boston University in ruling that making songs available 'does not necessarily mean that a distribution has actually occurred.' London-Sire Records v. Doe 1, No. 04-cv-12434 (D. Mass.). The judge also found that the right to distribute and 'publication' were not the same under the statute.

But the strongest argument against the right to make songs available comes in a third case.

Howell

'Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right to distribution,' wrote U.S. District Judge Neil V. Wake of the District of Arizona in the case against a couple accused of sharing 54 songs. He also said that 'publication,' under the statute, isn't distribution. Atlantic Recording Corp. v. Howell, No. CV-06-02076 (D. Ariz.).

Little Impact

Gabriel says that the rulings had little practical effect because the RIAA could pursue cases based on actual distribution.

Defense lawyers in copyright infringement cases brought by members of the Recording Industry of America ('RIAA') are trumpeting as victories three recent court decisions that rein in the association's campaign against individuals who make songs available for distribution on the Web.

'Making Available' Rejected

The rulings, all this past Spring, address the RIAA's allegation that individuals could be found liable for copyright infringement simply by making infringed songs illegally available for distribution, rather than actually distributing the songs themselves.

All three rulings rejected that argument, although in varying degrees.

Ray Beckerman, a partner at New York-based Vandenberg & Feliu who represents the defendant in one of the three cases, says the decisions 'knocked out the RIAA's lead theory.

'It's the only theory they have any evidence to support,' he says. 'It will have a huge practical effect.'

But Richard Gabriel, lead counsel for the RIAA and a partner at Denver-based Holme Roberts & Owen, disagreed. He says the rulings have created mixed opinions in the district courts that an intervening circuit court would probably have to resolve. (Note: Internet Law & Strategy published a Q&A with Gabriel by Enter- tainment Law & Finance Editor-in-Chief, Stan Soocher, in the February 2008 issue; see, www.ljnonline.com/issues/ljn_internetlaw/6_2/news/149962-1.html.)

In the past year, several courts have addressed whether a defendant could be held liable by making infringing songs available on file-sharing networks.

Barker

In October, in the first case of its kind to go to trial, a federal jury issued a $222,000 verdict against a Minnesota woman accused of illegally sharing 24 songs on the Internet. The jury had been instructed to consider her liable even if she simply made the infringing songs available. Virgin Records America v. Jammie Thomas, No. 06-1497 (D. Minn.).

In the recent rulings, judges have further scrutinized the issue.

In the first case, U.S. District Judge Kenneth M. Karas of the Southern District of New York denied the defendant's motion to dismiss in finding that the RIAA, under Section 106(3) of the Copyright Act, has a right to 'distribute protected songs.' Elektra Entertainment Group v. Denise Barker, No. 05-cv-7340 (S.D.N.Y.).

The March 31 opinion centered on the definition of the right to 'publication' in the statutory language. The RIAA, whose member recording companies are plaintiffs in the suit, had argued that their statutory right to 'publication' is the same as a right to distribute their copyrighted songs, and that the defendant, by making those songs available on the Internet, violated that right.

In his ruling, the judge agreed with the RIAA on the definition of 'publication.' But he stopped short of finding that the defendants violated that right by making songs available on the Internet.

'Nowhere does it say that making anything available is an exclusive right of a copyright holder,' says Andrew Bridges, a partner in the San Francisco office of Chicago's Winston & Strawn who filed an amicus brief in the case on behalf of the Computer & Communications Industry Association and the U.S. Internet Industry Association. 'The court said that making available is not itself a right.'

London-Sire Records

On the same day, U.S. District Judge Nancy Gertner of the District of Massachusetts granted a motion to quash subpoenas against two students at Boston University in ruling that making songs available 'does not necessarily mean that a distribution has actually occurred.' London-Sire Records v. Doe 1, No. 04-cv-12434 (D. Mass.). The judge also found that the right to distribute and 'publication' were not the same under the statute.

But the strongest argument against the right to make songs available comes in a third case.

Howell

'Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right to distribution,' wrote U.S. District Judge Neil V. Wake of the District of Arizona in the case against a couple accused of sharing 54 songs. He also said that 'publication,' under the statute, isn't distribution. Atlantic Recording Corp. v. Howell, No. CV-06-02076 (D. Ariz.).

Little Impact

Gabriel says that the rulings had little practical effect because the RIAA could pursue cases based on actual distribution.