The RIAA has run into another judge who not only rejects its theo...

in P2P cases. A few judges nationwide have kept the RIAA from scoring speedy victories, notably in San Diego, where the trade group’s standard complaint was rejected as impermissibly vague (WID Sept 11 p2). Defendants elsewhere have cited the San Diego ruling to resist RIAA. Now in the U.S. District Court in New Haven, Conn., Judge Janet Arterton has told the major record labels that she can’t grant their motion for a default judgment in Atlantic v. Brennan. Nothing in the “current sparse record” indicates why Christopher Brennan didn’t respond to being served by the RIAA, a silence that the trade group reads as not contesting its charges. But Brennan’s lapse is “negligent at most,” Arterton said. She cited another court’s opinion that even “gross negligence” weighs only “somewhat” against defendants. Arterton called “problematic” the RIAA’s contention, supported by the Justice Department, that making files available for distribution is infringement. She cited a 7- volume treatise on copyright by Google Senior Copyright Counsel William Patry in which he wrote that “actual distribution” is required to infringe. This seems to be the first instance of a judge citing Patry, a vocal critic of the RIAA and former adviser to the Register of Copyrights, in rejecting an RIAA argument. Arterton also cited a 9th U.S. Circuit Court of Appeals ruling against adult publisher Perfect 10 finding that “actual dissemination” is required for distribution. That court said Google didn’t “distribute” full-sized infringed images because it didn’t host them (WID May 17 p1). Arterton cited “colorable defenses” asserted in other cases that weigh in favor of Brennan, including a challenge to the constitutionality of statutory damages under the Copyright Act in UMG v. Lindor (WID Nov 28 p6) and a copyright-misuse counterclaim alleging antitrust behavior in Lava v. Amurao in Manhattan federal court. There’s no reason to think the RIAA will lose evidence, suffer “increased difficulties of recovery” or be harmed by those exploiting “greater opportunity for fraud and collusion” if its motion is denied, Arterton said. She echoed San Diego colleague Rudi Brewster, who said the Supreme Court’s Twombly ruling that complaints demand more than “labels and conclusions” was a strike against RIAA’s “boilerplate listing” of alleged infringements. The RIAA’s claims must be “more than mere conjecture,” Arterton said.