New York Judge Voids RIAA ‘Making Available’ Argument
An RIAA theory of copyright infringement without network transfer was rejected by a New York judge hearing a marathon P2P infringement case. The Monday ruling also shot down RIAA citations of World Intellectual Property Organization (WIPO) treaties and the Copyright Office as authorities binding on U.S. copyright law. But the court was otherwise friendly to the trade group. It got permission to refile its complaint and validation against the defendant’s claims that the RIAA’s case failed a new Supreme Court specificity-in-pleading standard.
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Elektra v. Barker in Manhattan federal court is among the few P2P cases to see a federal judge show interest in the “making available” theory, which says files in a shared folder are infringed. Judge Kenneth Karas hinted last year during oral argument that he viewed the theory as too “passive” to violate the Copyright Act (WID Jan 29/07 p5). Karas said in a Barker footnote that he received several amici briefs on the making-available argument, from the Justice Department, Electronic Frontier Foundation (EFF), MPAA, Computer and Communications Industry Association and U.S. Internet Industry Association.
The RIAA complaint doesn’t run afoul of the Supreme Court Twombly standard, which bars “speculative” allegations against defendants, Karas said. In a footnote he said Barker cited a much-discussed San Diego federal court finding that Twombly barred the RIAA “boilerplate” complaint (WID Sept 11 p2). “Respectfully, the Court is unpersuaded that Twombly demands such a restrictive interpretation” of the Rule 8 pleading standard, Karas said. That standard doesn’t impose a “great burden on a plaintiff” to show specificity along the lines of alleged times and dates of transfers from a shared folder, he said.
Addressing the making-available argument, Karas said other courts generally have held the term “distribution,” undefined in the Copyright Act, to be synonymous with “publication,” defined as including an “offering to distribute” copies, Karas said. House and Senate committee reports on the 1976 copyright update legislation several times used the terms interchangeably, he said. But in a footnote, Karas said he disagrees with the RIAA claim that approval by the 105th Congress of the WIPO Internet treaties controls the interpretation of section 106 of the Copyright Act, written by the 94th Congress. The treaties, which take the RIAA view, aren’t “self-executing,” and as such can’t be considered U.S. law until Congress passes “implementing statutes,” Karas said. Citing the 2nd U.S. Circuit Court of Appeals, he also said the Copyright Office has no authority to define legal terms. The RIAA had invoked Register of Copyrights Marybeth Peters’ support for its view of section 106.
“The support in the case law for the ‘make available’ theory of liability is quite limited,” Karas said. The 4th U.S. Circuit Court of Appeals’ 1997 Hotaling decision, that a library infringes by making an unauthorized work available to the public, “even if sound public policy, is not grounded in the statute,” he said. A handful of courts have backed up making-available, but most only have “expressed interest in the possible viability” of the theory, he said, listing several contested P2P cases, including the recent Brennan ruling in Connecticut (WID Feb 26 p7). His own court limited Hotaling’s application in the 2002 MP3Board case to instances in which it was impossible to prove infringement because the infringer didn’t keep records of public use, Karas said. Congress didn’t expressly equate an “offer” to distribute with “making available,” so the RIAA can’t make a claim, he said. The group has 30 days to amend its complaint to allege that Barker made an offer to distribute files, Karas said. Since the RIAA claimed that Barker actually downloaded files without authorization, its complaint can’t be dismissed, he added.
Karas also shot down a suggestion in the MPAA amicus brief that the opening of section 106, which gives copyright owners the exclusive right to “authorize” distribution, would validate making-available. The NFL v. Primetime 24 decision cited by MPAA actually contradicts the group’s position, Karas said, because in using “authorize” Congress meant to “avoid any confusion with regard to contributory infringers.” Another case cited by MPAA, Curb v. MCA, also backfired with Karas, who said that ruling meant to help copyright owners go after “international infringers” normally outside U.S. legal reach.
Karas wouldn’t touch the issue of whether digital files are “material objects” infringeable under the Copyright Act, because Barker didn’t assert that as a defense, he said. EFF argued forcefully in its brief that the files weren’t “copies” or “phonorecords” as defined in the law by virtue of their intangible status.