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Judge to RIAA: You can't sue over songs 'made available' via P2P

A federal judge in New York has dealt the Recording Industry Association of America a setback in its thousands of lawsuits over piracy on peer-to-peer networks.

In a widely anticipated decision, U.S. District Judge Kenneth Karas ruled Monday to reject the RIAA's claim that a Kazaa user who merely "made available" copyrighted music necessarily violated the law. Rather, he said, the RIAA would have to demonstrate that unlawful copying actually took place.

"Plaintiffs' allegations--insofar as plaintiffs wish to hold defendant liable for acts of infringement other than actual downloading and/or distribution--fail to state a claim," Karas wrote.

This is not necessarily fatal to the RIAA's lawsuit against Tenise Barker (referred to as Denise Barker in some court documents) that will continue in the Southern District of New York. That's because the music labels also have alleged that she actually did distribute copyrighted works--meaning that if they can prove that happened, which is more difficult, they can still win.

A few characteristics make this case unusual. First, New York federal judges are viewed as well-versed in copyright law, so Karas' decision is likely to be influential. Second, an unusually large number of outside groups filed briefs, including the U.S. Internet Industry Association, the Motion Picture Association of America, the Electronic Frontier Foundation, and the Computer and Communications Industry Association, meaning the court benefited from a range of views and increasing the importance of this week's decision.

Finally, the Bush administration jumped into the case on the part of the RIAA. The Justice Department's brief calls EFF's arguments "misleading" and says that the World Intellectual Property Organization treaty--signed by the United States--covers "making available" copyrighted works.

The "making available" argument is the same legal theory that the RIAA's attorneys relied on in the Jammie Thomas case, which led to $222,000 in penalties in October. The jury instructions said that "the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution"--meaning all they had to do was claim that Thomas left the songs in a publicly accessible directory where they could have been downloaded.

Thomas has said that her appeal to the 8th Circuit will center on whether or not "making available" copyrighted works--on the theory that they could have been downloaded--should be unlawful even if there's no evidence any transfers took place.

Other courts have considered this topic in lawsuits filed by the RIAA, but more briefly. In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that: "At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs." (Emphasis added.)

As I wrote last fall, there are some dangers if the RIAA's "making available" theory is widely adopted by courts. If my mother accidentally shares her computer's entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that "making available?" Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?

If I don't upgrade to a newer version of my operating system even though I know there's a security glitch that opens my hard drive to the Internet, does that mean I'm "making available" my music collection? Do Internet service providers "make available" access to Kazaa? Do search engines "make available" links to infringing files?

These are not all easy questions to answer, especially because intent doesn't matter much in copyright law. It's what lawyers like to call a strict liability offense--meaning that even accidental "making available" can slap you with a $222,000 penalty. This might make sense for corporate defendants, but it gets bizarre quickly when applied to hundreds of millions of Internet users.

No appeals court--that I know of, at least--has ruled on exactly this point. Now it's teed up for the 8th Circuit (the Thomas case) to consider this year, and the 2nd Circuit (the Barker case) to hear sometime later. The outcome will be worth watching.

Update : While the judge rejected the RIAA attorneys' "making available" argument, he did provide them with a road map showing a detour that might still allow them to arrive at their destination. Specifically, he ruled that an "offer to distribute" can amount to a distribution. The RIAA needs to, he wrote, "affirmatively plead that defendant made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." Look for the RIAA's revised complaint--it has 30 days to resubmit it--to argue just that.

Update : Here's the RIAA's response, which says in part that "the court did in fact agree with the record companies that 'making available' a copyrighted work under those circumstances is an infringement. But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire "making available" issue irrelevant."