RIAA's 'making available' theory falls

THE MUSIC MAFIAA was handed its head on a plate by a US federal judge, when New Haven, Connecticut, US District Court Judge Janet Bond Arterton denied the RIAA's request for a default judgement in Atlantic v. Brennan on February 13, striking down the recording industry's lame argument that merely "making available" music files is sufficient evidence of nefarious copyright infringement.

Several recording industry companies had filed a lawsuit against Brennan for copyright infringement in February 2007. The defendant failed to respond or appear in court, so the plaintiffs won an entry of default against him. However, after the plaintiffs moved for a default judgement, the judge denied the motion.

In a tightly reasoned and meticulously sourced nine page ruling, Judge Arterton set forth the brief history of the case, quoted the plaintiff's complaint, discussed the principles guiding judicial rulings on default judgements, and applied those to the circumstances before her.

In particular, she laid out that the court's decision on whether or not to grant a default judgement must consider: "(1) whether the default was willful or culpable; (2) whether granting relief from the default would prejudice the opposing party; and (3) whether the defaulting party has a meritorious defense. "

On the first of these criteria, she found that the defendant's default was only "negligent at most," thus only slightly favouring the plaintiffs but favouring them nonetheless.

She then took up the third question listed above in order, that is, whether "a meritorious defense" existed. After noting that a potential defence need not be "ultimately persuasive at this stage" but might be merely possible, if proven at trial, she addressed the elements of copyright infringement, quoting case law that: "A plaintiff alleging copyright infringement must establish two elements: '(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'"

With reference to "the nonexistent factual record" due to the substance of the plaintiffs' allegations resting on nothing more than their own information and belief, she was unable to reach a conclusion as to whether the defendant would have a meritorious defence to the allegation of reproduction other than to deny that the claim was actionable and not barred by the fair use doctrine.

Then, however, she pounced, writing:

"At least one aspect of the Plaintiffs' distribution claim is problematic, however, namely the allegation of infringement based on 'mak[ing] the Copyrighted Recordings available for distribution to others.' This amounts to a valid ground on which to mount a defense, for 'without actual distribution of copies... there is no violation [of] the distribution right.'"

She also cited a 9th Circuit Court of Appeals ruling -- "(affirming the district court's finding "that distribution requires an 'actual dissemination' of a copy")."

On the second issue, which she addressed last, she found that the plaintiffs had shown no evidence beyond merely their "information and belief" that copyright infringement had even occurred, failing to support the conclusion that denying the motion might "result in the loss of evidence, create increased difficulties of recovery, or provide greater opportunity for fraud and collusion." Thus she did not find that the plaintiffs would be unduly prejudiced, were their motion for a default judgement to be denied.

With one prong of the three criteria falling for the plaintiffs but two decided in favour of the defendant, Judge Arterton found for the defendant and therefore denied the plaintiffs' motion for default judgment.

Arterton also mentioned other "colorable defenses" that defendants might claim, such as unconstitionally excessive, disproportionately high damages and anticompetive behaviour on the part of the plaintiffs. And those might yet carry weight, but those are, however meritorious, secondary arguments at this point.

The music cartel was dealt a major setback by having its "making available" theory of unauthorised distribution shot down in court. It can appeal of course, or it can simply file an amended complaint in this case. But its presumed guilty "making available" theory is now well and truly blown, we can all only hope.

Judge Arterton's decision is here (pdf). µ

L'INQ
Recording Industry vs The People