This is a personal opinion piece by Ray Beckerman, who is one of the attorneys representing Tenise Barker in Elektra v. Barker. Thanks to Jon Newton of p2pnet.net who inspired it.
What is the most important RIAA case in the country?
Arguably it's Elektra v. Barker, pending in Manhattan federal court before Judge Kenneth Karas, a recently appointed judge who is a former federal prosecutor.
Not because there's anything different about the complaint -- it's the exact same boilerplate complaint the RIAA has used in 19,000 other cases.
Not just because Ms. Barker made a motion to dismiss the complaint -- i.e. attempting to stop the lawsuit in its tracks on grounds that would be fully applicable to ALL the RIAA's cases -- because there are at least half a dozen other cases in which such motions have been made.
It is the most important case because the RIAA has made it so.
The RIAA apparently made a considered decision to choose this time and place to go for broke.
The RIAA -- seemingly deliberately -- provoked a massive confrontation, in which the MPAA, the American Association of Publishers, and the United States Attorney General, are lining up against not only Ms. Barker and all the other RIAA victims out there, but against the Electronic Frontier Foundation and the trade associations which represent most of the giants of the internet and computer industries.
Ms. Barker made a simple motion to dismiss the complaint, saying it did not give her adequate notice of the infringement she's accused of.
In response, the RIAA made its most shocking and outlandish arguments to date, claiming that merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', is in and of itself a "distribution" and a copyright infringement. I.e., even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement.
Learning of this, The Electronic Frontier Foundation, The Computer & Communications Industry Association, and the U. S. Internet Industry Association -- realizing that if this absurd argument were accepted the entire internet might be shut down in the United States, since the internet is nothing more than a giant network of hyperlinks making files 'available', and also realizing that Ms. Barker doesn't have the financial resources to wage a full scale war protecting the entire internet from destruction -- were quick to file amicus curiae briefs pointing out to Judge Karas the absurdity of the RIAA's arguments.
Shortly thereafter the MPAA filed an amicus brief supporting the RIAA's argument, the American Association of Publishers requested permission to file a similar brief, and the United States Department of Justice wrote to the Court indicating the possibility of filing a "Statement of Interest".
All to collect about $6000 from a young nursing student who lives in the Bronx?
I don't think so.
Links to all the applicable litigation documents are collected under Elektra v. Barker in
(Fortunately, publicly filed documents are in the public domain -- last I heard -- so I can still lawfully "make them available" to you.)
PS. The case has taken on added importance in light of the fact that of the 7 motions to dismiss of which I am aware, 5 have been denied. If this motion is also denied, it will be years before the issue can percolate up to the appellate courts, because denials of dismissal motions are ordinarily not appealable. If, on the other hand, this motion is granted, and the case against Ms. Barker thrown out, it is likely that the RIAA will appeal and the issue will get to the U. S. Court of Appeals for the Second Circuit within a matter of months. Once we have a decision from the Second Circuit -- one of the most important copyright courts in the country -- we will have a pretty good idea where we stand.
Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs