In Atlantic v. Brennan, a New Haven, Connecticut, case, the Court has denied the RIAA's application for default judgment, rejecting the RIAA's "making available" theory.
The February 13, 2008, decision of District Judge Janet Bond Arterton holds, among other things, that the complaint is insufficient, both because
"“without actual distribution of copies.... there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”)"and because the balance of the complaint fails to satisfy the pleading standards of Bell Atlantic v. Twombly, – U.S. –, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), and would not survive a motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), agreeing with Interscope v. Rodriguez, 2007 WL 2408484 (S. D. Cal. August 17, 2007).
Additionally, the Court held that the defendant had numerous other possible defenses:;
In other similar cases brought by these Plaintiffs and other record labels,February 13, 2008, Order and Decision denying application for default judgment* (534 F. Supp.2d 278)
individual defendants have raised a host of colorable defenses; but due to the
varying procedural postures, the viability of these defenses has largely yet to be
conclusively determined. The defenses which have possible merit include: (1)
whether the amount of statutory damages available under the Copyright Act,
measured against the actual money damages suffered, is unconstitutionally
excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at *3(E.D.N.Y.2006) (finding the defense non-frivolous); Zomba Enters., Inc. v.
Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir.2007) (rejecting the defense as
to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory
Damages, 3 Geo. J.L. & Pub. Pol'y 601, 637 (2005); FN2 and (2) whether the
Plaintiffs and their recording industry peers, by bringing infringement suits like
this one, have engaged in anticompetitive behavior constituting copyright misuse,
see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to
dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v.
WIREdata, Inc., 350 F.3d 640, 647 (7th Cir.2003) ("The doctrine of misuse prevents
copyright holders from leveraging their limited monopoly to allow them control of
areas outside the monopoly .") (quotation marks omitted).
[Ed. note. A big shout out to Matt Foster of Indiana Legal Services, Inc., for calling this decision to our attention. Thanks, Matt! -R.B.]
* Document published online at Internet Law & Regulation
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