Judge to RIAA: Prove It! By Wes Phillips February 26, 2008 — The Recording Industry Association of America's (RIAA) aggressive campaign against its customers has most recently relied heavily upon the "making available" argument. The RIAA has argued that the act of making a recording available on a peer-to-peer (P2P) network was a crime, even if nobody actually linked to or downloaded the files. In October 2007, judge Michael J. Davis ruled in Capitol Records v. Thomas that the labels did not need to establish that the songs Ms. Thomas loaded to her KaZaa account were downloaded by others. Ms, Thomas was held liable for $220,000 in penalties.

Not every judge has bought into the RIAA's argument, however. In September 2007, California federal judge Judge Rudi M. Brewster ruled in Interscope v. Rodriguez —a case where the RIAA was asking for a default judgment because Ms. Rodriguez never responded to its complaint—that the RIAA's "boilerplate" complaint inadequately stated its claim, citing a precedent established in the September 2007 Supreme Court decision in Bell Atlantic v. Twombly. In that case, Justice Souter wrote: "We have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict."

Translation: Just because it could happen doesn't prove that it did happen. You have to prove it.

Now, judge Janet Bond Arterton has ruled similarly in Atlantic v. Brennan. The Brennan case is another in which the defendant failed to respond to the complaint and the RIAA requested a default judgment. Judge Arterton denied that request.

Three factors must be present for a default judgment: the lack of response must be "willful", that the defendant not have a "meritorious defense" available, and finally for the plaintiffs to "be prejudiced" if the default is not granted. Judge Arterton agreed that Brennan was indeed negligent in not responding to the complaint, but held the other two criteria worked very strongly in his favor. The judge was caustic in citing the "nonexistent factual record" of the complaint. "At least one aspect of Plaintiffs' distribution claim is problematic, however," Arterton wrote. "Namely the allegation of infringement based on 'mak[ing] the Copyrighted Recordings available for distribution to others.'"

Judge Arterton also cited Interscope v. Rodriguez, writing, "The complaint in Rodriguez was nearly identical to the one filed by Plaintiffs in this case, particularly in the respect that gives this Court pause. Rather than provide '[f]actual allegations' sufficient to make their claims for relief more than mere conjecture, Plaintiffs' allegations of infringement lack any factual grounding whatsoever, and rely instead on their 'inform[ation] and belie[f]' that Mr. Brennan willfully violated their exclusive rights."

Ouch!

The RIAA, needless to say, "respectfully disagreed" with Arterton and plans to file a brief with the court to "clarify" matters.

The Electronic Frontier Foundation's senior intellectual property attorney, Fred von Lohmann recently made the same point in Atlantic v. Howell, observing that "without actual distribution of copies . . . there is no violation [of] the distribution right."

In a conversation with Stereophile, von Lohmann said: "Why is the recording industry piling on with these 'making available' distribution claims? If they want to sue individuals for copyright infringement, they should have to play by the rules and demonstrate that infringing copies were made. If, on the other hand, they want to sue for distribution, it is not enough to show that someone might have downloaded a song from you—they have to prove that someone actually did download it from you.

"The recording industry is trying to set dangerous new precedents on the backs of individuals who have little or no ability to mount a sophisticated defense. Of course, any precedents set here will be used against bigger targets, such as XM Radio and Google (both of whom have been sued on a similar 'making available' theory), in future lawsuits."