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January 22, 2007
By Ray Beckerman
In 2003, the Recording Industry Association of America began a massive litigation campaign on behalf of the four major record companies against end users of peer-to-peer file-sharing programs, alleging widespread infringement of their sound recording copyrights. Somewhere in the neighborhood of 20,000-25,000 suits have been brought to date, with hundreds of new complaints filed monthly.
While at first blush this battle might appear to be a simple fight between record companies and some alleged music file-sharers, it is actually much more significant because the litigation campaign rests upon a legal argument about the Copyright Act that, if accepted, would represent a major expansion of the present boundaries of U.S. copyright law. This theory could have an enormous impact on the Internet as we know it.
The argument is that even if a defendant has never copied or distributed a file illegally, the fact that he or she possesses a computer with a shared-files folder on it that contains copyrighted files "made available" over an Internet connection, this in and of itself constitutes infringement of the "distribution" rights of the sound recording copyright holder under Section 106(3) of the Copyright Act.
A motion to dismiss in the case, Elektra v. Barker, 05 CV 7340, scheduled to be argued Jan. 26 in the Southern District of New York, might represent either the death knell of this theory or the enthronement of it as a binding rule of law.
RIAA Research Behind Claims
The roots of the "making available" issue lie not in the RIAA lawyers' draftsmanship skills but in the limited investigation upon which the lawsuits are predicated. The RIAA's research begins and ends with its investigator, Tom Mizzone, who works for "antipiracy" company MediaSentry. Armed with proprietary software, Mizzone uses a pretextual P2P file-sharing account on Kazaa, Gnutella, iMesh, LimeWire and other P2P software providers to locate shared-file folders that contain recordings whose copyrights are owned by the Big Four.
Mizzone takes a screenshot, downloads a few of the songs and, through another proprietary process, determines the dynamic IP address assigned to the screenshot. Then the RIAA, armed with a court order, goes to the Internet service provider to get the name and address of the owner of the Internet-access account to which the dynamic IP address had been assigned at the time the screenshot was taken.
The RIAA then closes its investigation and simply sues the owner of the account identified by the ISP.
In its complaints, which are virtually identical in all 20,000-plus cases, it alleges, in conclusory terms, that the defendant is using an "online digital distribution system" to "download, distribute and/or make available for distribution" plaintiffs' recordings.
Since it does not know of any downloads or distributions, the RIAA can allege none except in conclusory terms. The one thing plaintiffs can allege with specificity is, in essence, "Here is a list of songs that someone with your Internet account was making available at a certain time and date."
The Players, the Arguments
The defendant in Barker is a Bronx nursing student. She moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), arguing chiefly that the complaint failed with respect to "downloading" and "distributing" because it does not allege any specific acts of downloading or distributing. (The motion cites Marvullo v. Gruner & Jahr, 105 F.Supp.2d 225, 230 (S.D.N.Y. 2000); DiMaggio v. International Sports Ltd., 1998 U.S. Dist. LEXIS 13468 (S.D.N.Y. 1998); Brought to Life Music, Inc. v. MCA Records, Inc., 2003 U.S. Dist. LEXIS 1967 (S.D.N.Y. 2003); Lindsay v. The Wrecked and Abandoned Vessel R.M.S. Titanic, 1999 U.S. Dist. LEXIS 15837(S.D.N.Y. 1999); and Stampone v. Stahl, 2005 WL 1694073 (D.N.J. 2005).)
In addition, the motion argues that merely "making available," without actual dissemination, is not a copyright infringement. (Barker cites Arista Records, Inc. v. MP3Board, Inc., 2002 U.S. Dist. LEXIS 16165 (S.D.N.Y. 2002); National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426, 434 (8th Cir. 1993) (citing 2 Nimmer on Copyright § 8.11[A], at 8-124); and In re Napster, Inc., 377 F.Supp.2d 796, 802 (N.D.Cal. 2005).)
The RIAA, in opposition, argues that "making available" would indeed constitute a violation of plaintiffs' right to "distribute" granted by 17 USC 106(3), relying chiefly upon the decision of the U.S. 4th Circuit Court of Appeals in Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (1997), in which a chain of libraries had distributed a number of concededly unauthorized copies of the subject work to its various branches and included them in card catalogs, but kept no circulation records, thus making it impossible for plaintiff to prove actual dissemination.
In reply, Barker distinguished Hotaling as being limited to its unusual set of facts.
Upon learning of the RIAA's argument that merely "making available" is in and of itself a copyright infringement, several organizations sought, and were granted, leave to file amicus curiae briefs in support of Barker's motion.
The Computer & Communications Industry Assn. and U.S. Internet Industry Assn. filed a joint amicus brief arguing that the "distribution" right set forth in the Copyright Act is a specific, defined term and that the RIAA's proposed expansion would, if adopted by the court, "sweep into the reach of copyright law many activities not now covered by copyright law," making the boundaries of the distribution right "indeterminate and unpredictable, creating chilling effects on members of amici and virtually every other participant on the Internet."
As an example, they argued: "Companies routinely include in their Web pages hyperlinks that enable persons to navigate easily to other sites throughout the Web by use of browser software. Indeed, the Web is a collection of hyperlinks. Even though the use of hyperlinks makes content located elsewhere available to a Web user, it does not constitute a distribution of that content under section 106(3)."
The Electronic Frontier Foundation also submitted an amicus brief in support of Barker's motion, emphasizing an entirely different argument. EFF essentially assumed, for purposes of argument, that the complaint had adequately alleged Internet transmissions, and it argued that the "distribution right," as opposed to other rights under the Copyright Act, can never be implicated by mere ephemeral transmissions but relates solely to the dissemination of physical, tangible, material "copies" and "phonorecords." Picking up on the question raised by the U.S. 2nd Circuit Court of Appeals in Agee v. Paramount, 59 F.3d 317 (2d Cir. 1995) -- whether "disseminations must always be in physical form to constitute 'distributions' " -- EFF argued in the affirmative based primarily on the language of 17 U.S.C. 106(3), its legislative history and the reasoning of Agee.
The MPAA came into the picture with an amicus brief supporting the RIAA.
And the U.S. Department of Justice weighed in, submitting a "Statement of Interest," in which it confined itself to rebutting EFF's argument. DOJ specifically disclaimed having any "interest" in the RIAA's "making available" argument, pointing out that it had never prosecuted anyone under the copyright laws for "making available."
Barker filed additional papers, one responding to the EFF's amicus brief, one responding to the DOJ's statement of interest, each pointing out that it was not necessary to reach the "ephemeral transmission vs. tangible physical object" issue because the RIAA had not pleaded any instances even of "ephemeral transmissions" with sufficient specificity to satisfy normal copyright infringement pleading standards.
Ready for Argument
The motion is fully briefed and is scheduled for oral argument this week before Judge Kenneth Karas.
I am not aware of any other cases attacking the sufficiency of the RIAA's complaint in which all of the principally affected industries and interests have weighed in as amicus curiae. It is indeed unusual for a case at the district court level to receive this level of attention, thus accentuating the importance of the issues at stake.
While Elektra v. Barker would appear to be just a procedural pleading standards case, it is more than that because the RIAA does not actually possess more information to allege, so there is no possibility of curing the problem by repleading. Nor has it asked for leave to replead if defendant's motion is granted.
Since the RIAA uses a single, standard complaint in all of its litigations, the decision could affect huge numbers of litigants. As the CCIA and USIIA persuasively argue, there is almost no scenario under which the court's holding would not have far-reaching consequence to the technology and Internet world, regardless of which way the motion is decided.
And if the RIAA loses and the case is dismissed, it will no doubt appeal. The issues -- including possibly a revisiting of Agee in the context of Internet transmissions -- would then come before the 2nd Circuit, or possibly up to the U.S. Supreme Court.
About the author: Ray Beckerman is a member of Vandenberg & Feliu in New York and the author of the blog The Recording Industry vs. The People, which tracks file-sharing litigation. He is one of the attorneys representing defendant Tenise Barker in Elektra v. Barker.
