Friday, April 04, 2008

Practice tip: if you're litigating the "making available" issue, consider bringing the London-Sire decision to the attention of the Court

Although its discussion of the subject is only dictum, the March 31, 2008, decision of Judge Gertner in Arista v. Does 1-21 (which has somehow taken on the name "London-Sire v. Doe 1", presumably through consolidation), provides a much more orthodox and correct analysis of the requisites for infringement of the 17 USC 106(3) distribution right than does Judge Karas's analysis in Elektra v. Barker.

Judge Karas departed from the plain wording of the statute, and chose to disagree with a long line of cases and with all of the major copyright law treatises, when he decided -- based upon his foray into the "legislative history" of the 1976 Copyright Act -- that the statute didn't mean what it says. (See my criticism in Warner v. Cassin).

If you are litigating the "making available" issue, or the new theory which Judge Karas created and suggested to the RIAA of alleging "offering for purposes of distribution", please consider bringing the London-Sire decision to the Court's attention, especially the dictum at pages 19-27.


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


Anonymous said...

My first impression on reading this was that, had one of us posted something this directly critical of a judge, that we would have run afoul of the Comment Policies of this blog.


Jadeic said...

Correct assumption, Ray: three cases consolidated under London-Sire Records Inc. et al v. Does 1-4 on docket 161 filed 4 March 2008. And there I cynically thought the RIAA were changing names in mid-stream to make it trickier to track the cases through PACER - I would put nothing past them.


raybeckerman said...

Dear anonymous DM,

I guess you haven't read my comment policy, then, because I don't discourage readers from criticizing judicial decisions, at all. I would say that I encourage dialogue on the subject of what the judges are doing.

My policy on criticism of bar and bench is set forth in policy #7 which reads as follows:

7. No unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults. I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them. Lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society).

My criticism is quite substantiated. See, e.g, the letter I wrote to the Court in Warner v. Cassin.

I didn't denigrate Judge Karas, I pointed out the mistakes which I believe he made.

Anonymous said...


I understand the point you're making.

However, OTOH, I don't see how you can criticize a judge's decision as poorly reasoned without implied insult to the judge's reasoning abilities overall -- or at least on that day in question.

It comes down to the type of question: Are you wrong, or just stupid? Is a person a fool because he's a fool, or because he says foolish things? Can the two be separated?

You appear to perceive a distinction here that escapes me.

But that's just me.


raybeckerman said...

Judge Karas is no doubt smarter than I am. That doesn't mean he can't make a mistake. The law is exceedingly complex, and a federal judge has to be all over many, many different areas of law. He has to make hundreds of decisions every day. Some of them have to be wrong. He's not God, he's only human.

It's part of a lawyer's job to sometimes tell a judge when he's wrong.

And it's part of a law blogger's job to sometimes tell his readers when a judge was wrong.

In my professional opinion, there are serious errors in Judge Karas's decision, and there are errors even in Judge Gertner's decision.

William Patry's commentary tells you a few of them.

In my opinion, there are numerous other serious errors in Judge Karas's and Judge Gertner's thinking, which Mr. Patry does not address because they are not part of his copyright bailiwick, which are even more critical than the substantive copyright law issues -- e.g. (a) the ex parte motion practice, (b) the consolidation, joinder, and 'related case' treatment, which have played out to create an advantage to one side over the other, (c) the lack of evidence that the defendant committed a copyright infringement, and (d) subjecting someone to the expense of defending a federal litigation when the plaintiffs have no case.

Judges Otero, Arterton, Kelley, and others have had a much better understanding of those issues than either Judge Karas or Judge Gertner have demonstrated.