PiracyWatch: RIAA's 'Making Available' Theory Hits Roadblock

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PiracyWatch: RIAA's 'Making Available' Theory Hits Roadblock

Wed Feb 27, 2008 @ 10:20AM PST

Posted by Eriq Gardner

Riaalogo A Connecticut federal judge has rejected a request for a default judgment against an alleged file-sharer on grounds that  merely making copyrighted material "available for distribution" may not be a valid copyright infringement claim.

The case is Atlantic v. Brennan. Here's the judge's ruling.

Judge Janet Bond Arterton largely agreed with the recording industry plaintiffs but took one large exception. "At least one aspect of Plaintiffs' distribution claim is problematic, however, namely the allegation of infringement based on 'mak[ing] the Copyrighted Recordings available for distribution to others," she wrote. Quoting other cases, she continued, "This amounts to a valid ground on which to mount a defense, for 'without actual distribution of copies . . . there is no violation [of] the distribution right.'"

Some in the tech sphere, like at Slashdot, have seized upon this as news that a judge has rejected the RIAA's "Making Available" theory, the supposed underpinning of many of the industry's copyright pursuits, but that might be an overstatement. The judge merely opened the door to more arguments on the issue.

She said the defendant could have some wiggle room to raise "a host of colorable defenses" as similar defendants have done, including "whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive" and "whether the Plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse."

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