Monday, March 31, 2008

Judge rejects RIAA "making available" theory but sustains complaint, and gives RIAA chance to replead defective theory in Elektra v. Barker

In Elektra v. Barker, Judge Karas rejected the RIAA's "making available" theory, and its "authorization" theory, but

-sustained the sufficiency of the allegations of "downloading" and "distributing", and

-gave the RIAA an opportunity to cure its defective pleading.

March 31, 2008, Decision of Hon. Kenneth M. Karas, Denying Motion to Dismiss Complaint and Granting Leave to Replead* (2008 WL 857527)

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica
ZeroPaid (4/2)
The Inquirer
CNet News
Heise Online (German)
Digital Media Wire
Patry Copyright Blog
Associated Press (via

Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property


Shane said...

Well, it is certainly a thoughtful opinion, but I'm troubled by the dismissal of failure to state a claim. On its face failure to state a claim should be a slam dunk--since, well, they didn't state a claim. But the judge seems determined to find a way to let the RIAA make boilerplate allegations in lieu of the specific allegations for which they supposedly must have in order to file suit:

""Defendant further argues that the Complaint does not allege that the songs listed in Exhibit A to the Complaint were illegally downloaded or distributed by Defendant. Defendant’s arguments are without merit. Rule 8 is “not meant to impose a great burden upon a plaintiff.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005).
Indeed, the purpose of Rule 8(a)(2) “is to give fair notice of a claim and the grounds upon which it rests so that the opposing party may identify the nature of the case, respond to the complaint, and prepare for trial.” "

Not knowing when or what was supposedly copied makes it very burdensome on the defendant--a fact that was shown repeatedly in the SCO vs. Novell copyright case, where SCO claimed publicly to have millions of lines of code infringed upon, but managed to stall, and stall, and stall over producing the alleged bounty of evidence while it helped itself to years of fruitless discovery fishing trips--hoping to force a settlement or luck into some actual infringement. The RIAA is doing much the same.

By allowing this case to stand the judge is allowing the plaintiffs to use a vague and unsworn exhibit in place of a proper claim. However, there is no excuse for failure to state a claim, especially when the RIAA claim to know the specifics before fling the case.

One wonders why the lawyers are so hesitant to incorporate their claims into their complaint? Are they really that lazy? Or is it a method to forestal possible Rule 11 sanctions for incorporating illegally obtained and highly questionable "evidence" into their sworn complaint?

What ever the case, the RIAA should, for the good of jurisprudence, be made to state a complaint in their complaint rather than be allowed to attach an illegally obtained, unsworn exhibit as an afterthought.

Daniel said...

Based on my reading, the question will now be whether there was an offer to distribute copies for the purpose of further distribution. Simply "making available" for the purpose of private use would not be infringing.

Anonymous said...

Point 1: Where is the information for the "on information and belief" that the Defendant continues to use an online media distribution system? Oh, right, there isn't any, and never was. That should be tossed out of the revised complaint first thing.

Point 2: The moment the Plaintiffs maintain an "and/or" belief in the alleged Defendant's activities, they should be immediately booted out of court for not even knowing exactly what they're suing for. It's unfortunate that the judge seems to accept this shotgun approach.

Point 3: Unless the computer never identified by the Plaintiffs directly downloaded from a machine under Plaintiff's or Plaintiff's illegal investigator's control, or somebody rats them out as a direct witness to the act, downloading cannot be proven. Oh, yeah, that doesn't count. And it's now "downloading" even if music files are found on the hard drive, even though they could have gotten there from other unprovable, and even legal, sources.

Point 4: "Making Available" is all the Plaintiff's ever had, and even that was obtained illegally in every state that requires licensing of private investigators. While the judge is being far nicer than we would ever wish in allowing Plaintiffs the opportunity to "cure" their defective case, without Making Available, it cannot be cured short of them beating out a confession from the Defendant — or Defendant's neighbor and (former) best friend. Even if they had the exact computer in the exact shape the moment it last quit filesharing, there is no proof on that computer that any file was ever distributed from it.

Point 5: Only in the RIAA's imagination (and court papers) is KaZaA ever considered an "Online Media Distribution System". Newspeak should be discouraged in all court filings by the harshest measures possible.

Point 6: It is beyond doubt that Plaintiffs can prove no set of facts in support of his claim which would entitle him to relief. They cannot prove what they allege. There is no evidence that this Defendant ever infringed from any computer. You'd like to think that when a case can't be proven, it's immediately dismissed and the Defendant's lawyer and other fees paid in full. Oh, right, this is The United States of America. Silly me!

Point 7: The judge points out that as of the date of the filing, August 18, 2005, that according to the Plaintiffs, the Defendant has continued her/his/their infringing activities. This is almost certainly the biggest lie of the Plaintiffs, and the judge seems to have completely bought into it. There is NO EVIDENCE AT ALL presented to support this contention. If this case continues forward, why can't the Plaintiffs be called to task of their complete and outright bald faced lie that is serving as justification to prevent dismissal now? This has to be PERJURY of the highest degree!

Point 8: While this judge gets deeply into "Publication" versus "Distribution", where is the discussion of the most important word: "Offer"? Is anything "offered" when someone else has to go to considerable effort to come and find it? I also note that Nimmer clearly differentiates between "Publication" and "Distribution". That publication without distribution is possible, meaning that they aren't synonymous.

Point 9: If Plaintiffs have to drop "Making Available" here and go only with their other unprovable charges, are they estoppeled from arguing "Making Available" in other cases?

Point 10: The judge states that: whether Plaintiffs can prove Defendant actually distributed the copyrighted works is not presently before the Court. It sure ought to be. The Defendant is irreparably harmed when a case that cannot be proven by any means available is allowed to proceed regardless of that fact. And the RIAA expert witnesses in the past have agreed that KaZaA keeps no logs or other information indicating that it ever distributed any file — to the RIAA's illegal investigators, or to anyone else.

If I were the Defendant, I would argue that, once "Making Available" is off the table, the Plaintiffs have no ability to prove any of the other facts in the case, and that the Defendant is massively prejudiced by allowing this case to continue any longer. Require that the Plaintiffs demonstrate to the court how either uploading, or downloading, in violation of the provisions of the Copyright Act, are even possible, and kick the case when they come up empty here.

It appears that the RIAA is finally running into the serious problems that it should have run into from the very beginning.


Alter_Fritz said...

Thank you "ipod"-Judge!

I'm aware that my word does not count, but non the less let me say that you have given here a very well written and good explained order that even an "IANAL"-guy can understand easily. (I must take your word that you cited the other decisions correctly of course, but your own explainations were even for me logic, reasonable and easily comprehensible)

Maybe your Honour could teach that skill to other judges too?!

While I personly would have loved to see that you grant the motion I think it's now even "more interesting" then it was before. (I know that classification might sound a bit cynical since these proceedings are not just mock trials in a lawschool class but some real defendants out of flesh and blood that gets dragged thru the court system by the organised Music so I feel sorry for Miss Barker of course that it isn't over yet!)

We go into the "3 week commercial break" in this drama with highly anticipation what will happen next:

Will the Plaintiffs file more papers?
will we see more lies and nonsense from them?
Will the Judge slap them then for sloppy case preperation with rule11 or something like that?
Have the lawyers for defendants in other cases noticed the hint for their cases in that one footnote about the EFF?

These questions and many more will be answered when we come back.

Stay tuned!

Igor said...

Shouldn't this help with the appeal of jury instructions in the other case?

Anonymous said...


I expect the Plaintiffs to come back with the non-implemented WIPO treaty, and Registrar of Copyrights person Marybeth Peters, to try and overturn the ruling against "Making Available" before it can spread to other cases. And yes, there will be a veritable blizzard of paper trying to bury this decision.

That just my guess.


Anonymous said...

As I understand this "offering to distribute" standard, a person could hypothetically be guilty of copyright infringement merely for offering something that appears to be copyrighted material, even if it isn't copyrighted.

Let's say a person's KaZaA program reports that they are sharing a bunch of copyrighted material, even though the material isn't really there. The RIAA could simply say that the defendant is "offering" to share the files, even though it is purely impossible for anyone to download the files because they don't exist, and the mere existence of that advertisement would be illegal.

derivative said...


If they get to "cure" their complaint, does that give you a chance to "cure" your answer and/or even counterclaims, with a few of the practice tips you have given out to others?

Jadeic said...

While ever there are diverse court rulings on the issue of 'making available' then either side in the litigation can wave the appropriately supportive flag in a judges face. This happened yesterday in a filing in Atlantic v Howell which saw the RIAA 'respectfully submit the attached decision in Atlantic Recording Corp. v. Anderson' which they rather tenuously claim supports their 'making available' theory. This can at least now be countered by raising Judge Karas's much bigger flag.

This is a mixed bag of a Decision by Judge Karas but at least there is clear evidence that he has diligently applied himself to tackling the more difficult issues posed by this litigation. On balance I think the Defendant has moved further forward than the Plaintiff.

What concerns me now is that the RIAA will seek to progress the view that while 'making available' by placing(!) files in a 'shared folder' may not be a copyright infringement it could be possible to suggest that files in a 'shared folder' satisfy the 'offering to distribute' concept explicit in the Copyright Act definition of term 'publication': which is now generally accepted as synonymous with 'distribution'. Personally I think this is a (dangerous) step too far. If accepted in law then it has implications way beyond the RIAA's parochial need to bolster its failing (already-dead-in-the-water) business model.


bbsux said...

I'm confused (probably because I'm not a lawyer).
From what I understand, this ruling basically says that the RIAA's "making available" theory, that they have been operating under till now has been declared "incorrect" by the judge. BUT he then points out that by having files in a shared folder that is covered by "offering to distribute". So now all the RIAA has to do is change "making available" to "offered to distribute" and they are back in business. Especially since they apparently don't have to prove "illegal" (as in non-mediasentry) distribution actually occurred, much less state when.

What good is this ruling? It only seems to strengthen the RIAA's position, but then again - I'm not a lawyer.

Anonymous said...

The Ars Technica article about this case paints a far dimmer view of this than it appeared to me on the reading. What I felt I'd seen was that the judge said as long as any of the legs of this case are merely plausible (downloading, distributing, and/or making available) the case survives at this point. So that the making available argument might not fly simply wasn't sufficient to shut down the entire case.

Now, as stated above by other posters, the RIAA is left with either downloading, or actually distributing, neither of which can they likely prove, although both judges and juries have been foolish in this regard given the legal standard necessary in civil cases. It's kind of like, if you could have done it, you probably did do it based on the evidence presented.

That's a horrible miscarriage of justice since the only facts are that the Plaintiffs will never be able to prove that anybody other than Media Sentry ever copied files from a computer we insist was yours, but that's enough to punish you with massive statutory fines and legal bills.

A sad day indeed for the very concept of justice.


You bring up this whole idea of a "shared folder" and placing files in it. I'm left to wonder how much intent in this circumstance is predicated on that directory actually being named \share ? If the directory, for example, was named \MyPrivateMusic and it ended up shared anyway (possible with file sharing programs), would the intent argument be much weaker?


Jadeic said...


It is as if you can read my mind!

That very thought has long occurred to me but I had filed it in the that's-just-too-obvious drawer...

Still, it does seem eminently sensible to me that if I renamed along the lines you suggest then the RIAA would have a hard job establishing any intent of 'offering to distribute' on my part.

This leads me on further with the suggestion I made that an adverse ruling (for us) on this issue of 'offering to distribute' has much wider implications. The next step from the RIAA POV would be then to assert that ANY file (whether in a 'shared folder' or not) that can be seen across a P2P network is by definition 'available' and therefore could be construed as being 'offered for distribution'. If any case law is established that supports this viewpoint then it becomes a license for the RIAA to print money.

If we then look back at the real, physical, world then they could equally extend the same argument to apply to any copy made of a copyright work from a source that was not either password protected or encrypted (or otherwise under lock and key) as it would be deemed 'available' and hence being 'offered for distribution'. Don't for a minute think that the RIAA wold not go down this route if they could - which all goes to highlight the absurdity of their current position.


Anonymous said...

""If we then look back at the real, physical, world then they could equally extend the same argument to apply to any copy made of a copyright work from a source that was not either password protected or encrypted (or otherwise under lock and key) as it would be deemed 'available' and hence being 'offered for distribution'. Don't for a minute think that the RIAA wold not go down this route if they could - which all goes to highlight the absurdity of their current position.""

As Dave said, if this is accepted then ALL Libraries, including the LOC(Library of Congress), ALL museums, ALL Publications, Recordings, Schools, Colleges, etc would have to be shut down or be sued for "Offered for Distribution". That would also close most if not all business and the internet. This would also "require" users to lock up any copyrighted materiall in their possesion so that they are not "offered for distribtion" or face the law suits.....

Not a world I would want to live in. but if this happens, then someone could also sue their lawyers for haveing the law books in their possession and available to the others not the "owner" of the books and the Music companies for any copyrighted material that they have.........

Anonymous said...

I would say generally that files residing in a shared folder do not constitute any sort of active 'offer to distribute'. Two examples that come to mind from my own life:

1) At work I have a shared folder on one of my drives. When people want to send me a document, often the easiest way to receive a copy is to say 'put it in my shared folder' or when I want to send them a copy I place a copy of the file in my shared folder and tell them to get it from there. I'm lazy and don't bother cleaning out my shared folder regularly, so there are some files there that are two years old. Now, in theory, anyone within my work with computer access -from the receptionists to the cleaners- can search across our work network, locate my machine and take copies of the files sitting in my shared folder. They could do a similar thing by coming into my office, taking papers off my desk and photocopying them! Files that reside on my computer, just like documents that sit on my desk makes them 'available' for copying, but does NOT constitute any sort of a personal offer on my part to distribute the files.

2) I have a website on the internet that contains nothing except for a directory of files. These are non-confidential documents for my personal use that I want to be able access from anywhere. In theory these documents are 'available' to the general public who could simply type in the right URL and download a copy of them. However I do not perceive myself to be making any sort of offer to distribute as distribution is not at all my intention or aim in any way, the website being solely for the purpose of my easily accessing documents I wrote.

However, I would be inclined to think that people who use P2P programs for the purposes of sharing music, and who deliberately place music in shared folders accessible to those P2P programs are in fact making an offer to distribute. I am a regular user of P2P software for sharing non-copyrighted material, and I would say that in running a P2P program I am deliberately going above and beyond normal file availability and intentionally making an general offer to distribute to others who are running such software.

I realize these intuitions seem to conflict (in one instance having files in a shared folder seems to me to constitute an offer to distribute and in another instance it does not). It seems to me that subtle issues of context are coming into play to distinguish what is and isn't an offer to distribute - what seems to me to make the difference is my intentions and reasons for making the files publicly available. It seems I am making an offer to distribute if and only if I had an intention of making such an offer to the person who subsequently copied the file.

Since, I would guess, the vast majority of people who use P2P software to infringe copyright do so with the intention of taking copies of other people's files rather than distributing their own files it would seem to me that such people are not making an offer to distribute. I am not quite sure however that a court would look favorably on a defense that argued "I wasn't intentionally illegally distributing music, I was trying to illegally copy it for myself" even though I would suspect that in the majority of cases such a defense would be absolutely truthful. Admittedly, it does change the person from a scoundrel who is intentionally trying to distribute thousands of copies of copyrighted materials to a freeloader who's trying to get for free what they are supposed to pay 90c for.


Anonymous said...

Wm Patry has the following on his blog comment of 4 April:

The court went astray in my opinion in its interpretation of “distribute” in Section 106(3), which it held to be synonymous with the term “publication.” The term “publication” is defined in relevant part as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” But this doesn’t mean the logic flows the opposite direction, that a distribution is also a publication. But since the court held it did, the court was also stuck with holding that the offer to distribute a phonorecord is also a distribution, and the court’s discomfort with this obvious anomaly led it to place practical limits on its holdings, limits that don’t mesh with equation of distribution of publication, including finding that plaintiffs had not adequately stated a claim of further distribution, i.e., that plaintiffs had not adequately made out a making available. The court’s ruling nevertheless leaves open the possibility that having a work in a shared folder without authorization for it being there might be infringing, even if no one ever downloads it from that file.

"Interested Observer"