RIAA Rebuked on Vague Complaint, Takes Hit on ‘Making Available’ Theory
The RIAA suffered minor scrapes in its P2P litigation strategy recently, and opposing lawyers are taking advantage of the setbacks in other cases, including one set for oral argument Friday. A judge told the trade group that its standard complaint against a defendant alleged to have shared copyrighted files was too vague to be considered. And in a case not brought by the association, an appeals court cast doubt on the soundness of the RIAA’s theory that copyrighted files can be infringed even without access by other users.
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In an unusually stinging remark in a P2P case, Judge Rudi Brewster in San Diego federal court called the RIAA’s standard P2P infringement complaint “boilerplate.” RIAA lost its motion for a default judgment in Interscope v. Rodriguez for failing to “sufficiently” state a claim for relief. The “boilerplate” criticism is common in reply filings by P2P defendants’ attorneys, who have long argued that the RIAA must give evidence of exact dates and times of file transfers from a shared folder to show infringement. But judges had let pass the RIAA’s broad allegations. The RIAA’s original complaint provided a list of songs allegedly infringed, including file sizes, but no dates or times viewed or accessed.
Brewster cited the Supreme Court’s recent decision in Bell Atlantic v. Twombly, which set a “plausibility” standard for stating a claim. The decision said “more than labels and conclusions” are required for relief, “and a formulaic recitation of the elements of a cause of action will not do.” The RIAA had cited Twombly against a defendant’s reply in UMG v. Lindor in Brooklyn federal court. The RIAA provided nothing more than “speculation” in its complaint against Yolana Rodriguez, Brewster said in vacating the clerk’s entry of a default judgment. The defense in two New York-area P2P cases, Elektra v. Barker and Warner v. Cassin, notified the Manhattan and White Plains, N.Y. federal courts of the San Diego decision as instructive in those courts’ consideration of RIAA complaints.
RIAA filed a very specific amended complaint against Rodriguez. It took pains to explain that IP addresses can’t be used by more than one computer at a time and said “an individual had been identified” as having used LimeWire at 5:21:57 a.m. Oct. 2, 2005, on a specific IP address. Rodriguez was shown to be “distributing” 330 files, by which the RIAA meant that Rodriguez had 330 files owned by RIAA member companies in her shared folder. The defendant “had continuously used, and continued to use, a P2P network to download and/or distribute” the files, the amended complaint said, omitting the original complaint’s multiple references to “making available” files to download. The phrase “making available” has become charged in P2P cases because of its connotation of infringement without transfers.
The making-available theory -- which has been avoided by most judges asked to consider it -- suffered a blow in an unusual 1st U.S. Circuit Court of Appeals decision. In Latin American Music Co. (LAMCO) v. Archdiocese of San Juan, a publisher and its affiliated performance rights society sued a local Roman Catholic archdiocese for infringing their copyrights through broadcasts on the archdiocese’s radio stations. A dispute broke out between publisher LAMCO and other publishers in four related cases over who owned the copyrights to the songs in question in LAMCO. LAMCO eventually lost most of its copyright claims to the other publishers.
LAMCO admitted that 174 songs owned by other publishers were mistakenly included in the catalog of its affiliated performance right society, ACEMLA, but said such “authorization” to use the songs didn’t equal infringement, as the district court had ruled. The First Circuit said that “mere authorization of an infringing act” doesn’t amount to infringement - that depends on “copying or performance” of an authorized work. The publishers suing LAMCO didn’t cite legal authority that including songs in a catalog counts as infringement, and a factual issue remains over whether LAMCO committed infringement beyond the authorization, the First Circuit said. It declined to rule on whether LAMCO committed infringement, remanding the issue to the district court.
Again, the defense in the Barker and Cassin cases notified their respective courts of the First Circuit decision. The making-available theory will be evaluated Friday in oral argument in Cassin. “Even actual authorization, which plaintiffs cannot and do not allege, is not infringement,” Ray Beckerman, attorney for both defendants, told the courts.