The very first case which squarely addressed the issue of whether or not the RIAA's "making available" theory stated a claim for relief under the Copyright Act was a Connecticut case, Atlantic v. Brennan. The District Court of Connecticut rejected the theory, and for that reason along with a number of others, denied the RIAA's unopposed motion for default judgment. The RIAA moved for reconsideration, and that motion was rejected as well.
The RIAA thereafter filed an amended complaint and (allegedly) served it in July.
Now the RIAA has re-started the default judgment process, completing the first step which was to get the Clerk of the Court to enter an order certifying that the defendant is in default. The RIAA has 30 days to file a new motion for default judgment. The Clerk's minute entry reads as follows:
09/15/2008 ORDER granting, for failure to appear or respond to amended complaint 29 Motion for Default Entry 55(a) Motion for default judgment due by 10/15/2008. A Motion for Default Judgment pursuant to FRCP 55(b) shall be filed or this action will be dismissed by the Clerk pursuant to Rule 41(b) FRCP. Signed by Clerk on 9/15/08. (Torday, B.) (Entered: 09/15/2008)It remains to be seen what kind of application it will make for a default judgment, and how it will be received by the Court.
In a landmark February 13, 2008, decision reported at 534 F. Supp.2d 278, District Judge Janet Bond Atherton soundly rejected the RIAA's theory that the fact that song files are "available" on someone's computer constitutes an infringement of the 17 USC 106(3) distribution right, and denied the RIAA's unopposed motion for a default judgment, holding that:
[W]ithout 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”).Because of that, and because the balance of the complaint failed to satisfy the pleading standards of Bell Atlantic v. Twombly, – U.S. –, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007), the Court agreed with Interscope v. Rodriguez, 2007 WL 2408484 (S. D. Cal. August 17, 2007) that the complaint would not survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Additionally, Judge Atherton had held that the defendant had numerous other possible defenses:
In other similar cases brought by these Plaintiffs and other record labels,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.")The RIAA had moved for reconsideration; Judge Atherton denied that motion as well, despite having heard one-sided oral argument by the RIAA's lawyers.
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