PiracyWatch: New York Judge Rejects 'Making Available' Claim In Closely Watched Case

Posted by Eriq Gardner

A New York federal judge has ruled that the RIAA must do more than just claim an alleged pirate "made available" songs on Kazaa.

U.S. District Judge Kenneth Karas made the ruling in in Elektra v. Barker, a case that has mustered great attention from the entertainment and technology industries. The U.S. Internet Industry Association, the MPAA, the Electronic Frontier Foundation and the Computer and Communications Industry Association all filed amicus briefs in this case. Even the Justice Department filed a brief opposing the defendant's motion to dismiss the case.

Some have called the RIAA's "making available" theory the underpinning of many of the industry's copyright pursuits, and recent courts have similarly reacted skeptically to the claim.

Judge Karas didn't dismiss the plaintiff's claims altogether, however. Giving the RIAA 30 days to refile, he suggested that they amend their complaint by focusing on allegations of "distribution" and "downloading," which he found sufficient evidence to continue proceedings.

Meanwhile, in other news concerning the industry's fight against pirates, the International Federation of the Phonographic Industry has filed a $2.5 million copyright infringement lawsuit in Sweden against The Pirate Bay. The lawsuit focuses on 24 albums the IFPI monitored, in addition to nine films and four video games.

The founders of Pirate Bay seem to be taking it in stride, telling a local Swedish newspaper that "The record companies can go screw themselves."