Elektra v. Barker, one of the leading cases repudiating the RIAA's 'making available' theory, has been settled.
Accordingly, Ms. Barker's affirmative defenses will not be adjudicated.
A copy of the stipulation and order of settlement is on file with the Court.
Ms. Barker's answer admitted Ms. Barker's having used Kazaa, but interposed the following defenses:
1. Plaintiffs' damages theory, which argues for statutory damages of from 2,142 to 428,571 times the actual damages, would lead to an unconstitutional result (Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir. 2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005)), so that the complaint should be construed as alleging that the use of an "online media distribution system" to infringe plaintiffs' copyrights constituted a single act of infringement, warranting a total recovery of $750 if defendant is liable.Stipulation and order of settlement
2. In the alternative, the statute should be considered unconstitutional to the extent it could be construed as authorizing more than ten times the actual damages, and recovery should be limited to $3.50 per recording as against a single noncommercial user for a single upload or download of an MP3 file for personal use.
3. Unclean hands based upon plaintiffs' procurement of an unlicensed investigator, and commission of a Class B Misdemeanor under N.Y. General Business Law § 70, as well as unlawful pretexting and invasion of defendant's privacy.
4. Since the amended complaint makes no mention of any enumerated acts of infringement, but instead seeks recovery for a series of acts (the operation of an “online media distribution system” to infringe plaintiffs' copyrights), plaintiffs cannot recover statutory damages, costs, or attorneys fees for any sound recording copyrights registered with the U.S. Copyright Office subsequent to the date on which defendant first began using Kazaa, under 17 U.S.C. § 412. (See, e.g., Homkow v. Musika Records, Inc., 2008 U.S. Dist. LEXIS 14079 (S.D.N.Y. February 26, 2008); Irwin v. ZDF Enters. GmbH, 2006 U.S. Dist. LEXIS 6156 (S.D.N.Y. 2006); Shady Records, Inc. v. Source Enters., 2004 U.S. Dist. LEXIS 26143 (S.D.N.Y. 2004)).
5. Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.
Commentary & discussion:
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