Saturday, December 09, 2006

In Oregon Case Judge Denies Motion to Dismiss, Says "Making Available for Distribution" is Sufficient Allegation

In an Oregon case, Elektra v. Perez, 2006 WL 3063493, a judge has denied a defendant's motion to dismiss the RIAA's complaint, saying that the RIAA's allegation of "making available for distribution" is sufficient:

Elektra v. Perez, October 26, 2005, Decision* (Also Reported at 2006 WL 3063493)

This is the first instance of which we are aware in which a judge has explicitly held that the RIAA's allegation of "making files available for distribution" is sufficient in and of itself to state a claim for relief under the Copyright Act. The decision contains no discussion of the Copyright Act, applicable case law, legal scholarship, or anything else that might give a clue as to how the judge came to agree with the RIAA. We will investigate further to see if the issue was briefed and, if so, how.

The judge also granted the RIAA's motion to voluntarily dismiss without prejudice. Since the dismissal was without prejudice, Mr. Perez was not permitted to get attorneys fees.

Other documents from court file:

Docket sheet*
Plaintiffs' memorandum of law*
Defendant's memorandum of law*

Earlier documents:

Plaintiffs' memorandum of law in support of initial motion to dismiss defendant's counterclaim for attorneys fees*
Defendant's memorandum of law in opposition to plaintiff's initial motion to dismiss defendant's counterclaim for attorneys fees*

* Document available online at Internet Law & Regulation

Commentary & discussion:

(English language)

Ars Technica
iMedia Law Blog

(Other languages)

Planet Internet

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


Alter_Fritz said...

when does the internet get switched off now in the USA?
The whole internet is constructed of "making files available for distribution". Techies call that for example "hyperlinks"!
If this judge is right that this is "sufficient in and of itself to state a claim for relief under the Copyright Act." then the internet itself must be illegal in the eyes of a layperson.

CodeWarrior said...

Alter_friz and dave had good points.

Although this is not a great analogy that I am going to give, it is somewhat apropos.

This kind of notion is like blaming a jewelry store if they get robbed, because the glass display cases are "making available".

What about RIAA member record companies...they produce CDs containing allegedly copyrighted content, sell them to the public, and thus, are "making available" this copyrighted material for folks to copy.

raybeckerman said...

All 3 of you are right; it's incredible that the judge bought into that nonsense. But this is the first decision of which I am aware in which a judge did buy into it. I don't think the RIAA will be so lucky in Elektra v. Barker,

Anonymous said...

Not quite ...

a 12(b)(6) motion - failure to state a claim upon which relief may be granted - requires the judge to construe the legal arguments in the light most beneficial to the plaintiff. The claim not be legally valid, just 'colorable', arguably valid.

All he's saying is that the defendant's claim is insufficient to grant dismissal under FRCP 12(b)(6). This does not mean that the court would necessarily ultimately hold that making available = copyright 'fringement.

Alter_Fritz said...

what you are overlooking here is:
Those RIAA bastards first used the daddy in this case who is the internet account holder/billpayer to get to the perez kids.
So clearly in the first place they were going after the wrong person that is not even the alledged copyrightinfringer according to the plaintiffs own beliefs after discovery.
But instead that the judge now rules " OK the guy you were after in the first place did not do what you said he did so he is "innocent" and the prevailing party according to copyrightlaw and so you the RIAA must pay his costs for him defending his innocence", he let them slip away from him without prejudice.

This in my opinion very stupid judge allowed the RIAA to continue with their abuse of the law system like they do when they file "Doe" suits far away from where the does live without any chance that these motions will see the light of checks and balances in higher instances.

to use an animal analogy; The predator goes first after a pray it has no intention to eat after all, but only to wound that pray so hard that it will flew into the nest so that the predator can follow him and can kill and eat the even more vulnearable and more tastefull young pray.

So either your laws are fucking stupid that they allow this kind of action by the RIAA to accuse someone, then back off of their accusations because they no longer claim themself that their accusation against that person is valid, without making the RIAA responsible for the cost they inflicted on the falsely accuse! Or this judge is just a moron! We already saw that a judge with a brain ruled that backing off of a claim does not let the RIAA off the hock with regards to the costs they inflicted on the wrongfully accused!

raybeckerman said...

"jsq" has incorrectly stated the law. On a 12(b)(6) motion the judge is supposed to construe THE FACTS in the light most favorable to plaintiff. The judge is supposed to apply the applicable law, period.

The legal question is: assuming it is true that plaintiff can prove that defendant had copyrighted songs in a shared files folder which were therefor "available", does that in and of itself state a claim for relief or does it not? Although it is not crystal clear from the judge's brief discussion, it appears that he has resolved that question in the affirmative. Erroneously, in my professional opinion.

This issue will be determined in Elektra v. Barker, scheduled for argument in January.

Anonymous said...

Yes, the facts, but this is a complex, nuanced issue where fact/law are closely intertwined, and fact/law dichotomy isn't wholly applicable . Clearly, whether or not making available = infringement is going to depend on how one does so, a factual issue, which must be view favorably to the plaintiff. The point is that there's clearly more to this. I don't see anyway this claim could not be colorable.

Personally, I'm not sure the judge need consider the shared folder issue at all. I don't think the plaintiff needs to pleed the specifics here, so it's not an elemental part of the pleading. (I don't do copyright law, though, thankfully).

I certainly don't see a district judge sticking his neck out on this, especially when the case was going away anyhow.

raybeckerman said...

jsg, your views of the law are incorrect. If you have any authority for them, please cite them. Otherwise please stop saying things that are misleading.