"Making Available": It's All Over—or Is It?

On June 11, Recording Industry vs the People, Ray Beckerman's popular blogspot site covering the recording industry's ongoing series of litigations, revealed that the Recording Industry Association of America (RIAA) had voluntarily and "without prejudice" filed a motion on May 27 to dismiss its ongoing complaint, Warner v Cassin, which maintained that posting files to a peer-to-peer network was distribution of those files, whether or not actual distribution occurred. This is known in copyright law as "making available."

If the trial had continued, Warner v Cassin would have been one of the few cases in which the "making available" argument was actually argued in court. In April's Elektra v Barker decision, which was one of the few where "making available" has been debated, Judge Kenneth M. Karas sided with the RIAA, stating that offering a song on a P2P network did constitute copyright infringement.

However, Judge Nancy Gertner, in London-Sire v Does1–4, said, "Merely because the defendant has 'completed all the steps necessary for distribution' does not necessarily mean that a distribution has actually occurred. As noted above, merely exposing music files to the Internet is not copyright infringement."

Later in April, Judge Neil V. Wake was even more specific in Atlantic v Howells. "The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution."

So did the RIAA pull out of Warner v Cassin because it sensed that the legal tides were turning against "making available"? Almost certainly, but that's not the whole story. The dismissal motion was filed on May 27, signed by the Judge on June 4, and not discovered by the defendant's lawyer until June 11. On June 12, Beckerman (who is one of the Cassins' attorneys) discovered that the RIAA had filed a new suit (its third over the same files, in case you're keeping score), Warner v Does 1–4, which did not include Joan Cassin this time, since the RIAA cannot prove she was the infringer. The organization is convinced that Ms. Cassin's Internet Protocol address (IP) was used, however, and her refusal to identify the user obviously sticks in the RIAA's craw.

Beckerman observed that the RIAA did not mention that its new case was a continuation of Warner v Cassin, resulting in its being assigned to a new judge, Charles Brieant rather than to Warner v Cassin's Stephen C. Robinson. Beckerman has requested Judge Robinson rescind his "without prejudice" dismissal. Instead, it should be made "with prejudice," which would prevent the RIAA from bringing about its new action.

Beckerman has also written Judge Brieant, accusing the RIAA of "forum shopping," and that the RIAA walked away from Warner v Cassin while a motion of dismissal was pending. Beckerman characterized the new suit as an "end run" around Judge Robinson's "imminent" decision of dismissal, not to mention his stay of discovery. The new suit, Beckerman says, is a blatant attempt to discover the identity of the alleged infringer, which it was not able to do during the discovery phase of either of the associated suits it voluntarily walked away from.

We're waiting for the final shoe to drop—it's in the hands of the two judges now.