Both the plaintiffs' and defendant's motions for summary judgment have been denied in Motown v. DePietro, in the Eastern District of Pennsylvania. Ms. DePietro is appearing pro se.
The Court held:
There are... genuine issues of material fact concerning whether or not Defendant has been misidentified as the infringing user.... Defendant has... supplied the Court with a report from her purported expert. In this report, Defendant's expert offered several theories to explain that, even though Plaintiffs identified a user at Defendant's IP address as the infringer on November 18, 2003, it is possible that Defendant was not the infringing user. At the summary-judgment stage, the Court must accept this report in the light most favorable to Defendant. Doing so, in conjunction with Defendant's repeated denials that she downloaded or distributed the sound recordings at issue in this case, creates a genuine issue of material fact. If Defendant can offer proof at trial that she may not have been the user identified by Plaintiffs, a reasonable jury could find that she is not liable for infringement.
The Court also, held, however, that Ms. DePietro's discarding of her computer, approximately five (5) months after receiving the "Doe letter" informing her that she had been identified as an infringer and instructing her to preserve all related evidence (which was 4 months after the filing of the complaint, and 2 months after being served with the complaint)... and her returning the cable modem to her cable provider... created problems. Her expert had conceded that if these had not been discarded, the plaintiffs could have been able to use them to tell whether Kazaa had ever been installed on the computer, whether the MAC address of the computer and modem matched the MAC address in the cable provider's logs, whether a virus or worm could have been responsible for downloading, and whether defendant had enabled the remote desktop feature on her computer which could allow a third party access to the computer remotely. The Court then invited the RIAA to make a motion for sanctions for spoliation.
The Court also stated, in a footnote, its belief that "making available" is, as the RIAA argues, in and of itself a copyright infringement. (This is the issue that is before the Court in
Elektra v. Barker).
February 16, 2007, Order and Decision*Docket sheet** Document published online at Internet Law & Regulation
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