In Arista v. Does 1-21 (renamed London-Sire v. Doe 1), the RIAA has moved for "reconsideration", challenging Judge Gertner's rejection of its "making available" theory.
[Ed. note. Oddly, the RIAA's papers rely principally upon Judge Karas's decision in Elektra v. Barker, even though Barker likewise rejected the RIAA's "making available" theory. Notably, the RIAA's papers rely also upon the pro se case of Motown v. DePietro in which the issue was never briefed, the Texas case of Atlantic v. Abner Anderson in which the issue was likewise never briefed, and the highly distinguishable Hotaling case which even Judge Karas in Elektra v. Barker rejected as supporting a "making available" right. Typical of the RIAA's lawyers' normal tactics, the papers totally omit all reference to Atlantic v. Brennan, 534 F. Supp.2d 278 (D. Conn. February 13, 2008)(Arterton, J.), apparently in the hope that Judge Gertner does not know to read. The Brennan case not only is totally consistent with Judge Gertner's conclusions on "making available", and knocking out the underpinnings of the "offer to distribute" theory which Judge Karas posited; it went further, finding the complaint to be totally insufficient, even as to the allegations of actual downloading and actual distribution. The papers also omit all reference to Prof. Patry's blog, which agreed with the rejection of making available, agreed with Judge Gertner's rejection of a synonymous relationship between "publication" and "distribution", and questioned so much of Judge Gertner's decision as equated transmission of an electronic file with "distribution" or "distribution of a copy" -R.B.]
RIAA Motion for reconsideration*
* Document published online at Internet Law & Regulation
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