p2pnet news view | RIAA News:- Tenise Barker who, through her lawyer, Ray Beckerman, originally opposed the RIAA’s ‘file sharing by default’ argument, says she used Sharman Network’s Kazaa but if she infringed anything at all, she did so in innocence.
“In Barker`s case, the RIAA is trying to claim she infringed copyright by making a file available for distribution,” said p2pnet said in 2006, also noting Hollywood’s MPAA had filed an amicus brief supporting the RIAA.
With the MPAA involved, the RIAA will be able to increase its PR mileage, “using the ever-willing corporate news media as foils,” we said.
“Their cooperation is a given because, as Edward Jay Epstein says in his The New Logic of Money and Power in Hollywood, the major movie studios, ‘own all six broadcast networks in America,’ as well as ’64 cable networks whose reach accounts for most of the remainder of the prime-time television audience,’ going on that they, ‘control a large part of the entertainment media, including magazines’.”
This year, “Barker made a simple motion to dismiss the complaint, saying it didn`t give her adequate notice of the infringement she`s accused of,” we posted, going on:
“In response, the RIAA —- getting her name wrong in its original complaint —- made its, ‘most shocking and outlandish arguments to date, claiming that merely having a ‘shared files folder’ on one’s computer, and thereby ‘making files available for distribution’, is in and of itself a ‘distribution’ and a copyright infringement,’ said Beckerman, ie, ‘even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement’.
“The EFF, the Computer & Communications Industry Association and the US Internet Industry Association realized if this ‘absurd argument’ was accepted, the entire Net, ‘nothing more than a giant network of hyperlinks making files “available” might be forced offline in the US.”
In her answer she admits that she was using Kazaa, denies some of the allegations of the amended complaint, and interposes the following affirmative defenses:
1. Plaintiffs’ damages theory, which argues for statutory damages of from 2,142 to 428,571 times the actual damages, would lead to an unconstitutional result (Parker v. Time Warner Entertainment Co.,331 F.3d 13 (2d Cir. 2003); UMG Recordings, Inc. v. Lindor, 2006 WL 3335048 (E.D.N.Y. 2006); In re Napster Inc., 2005 WL 1287611 (N.D. California 2005)), so that the complaint should be construed as alleging that the use of an “online media distribution system” to infringe plaintiffs’ copyrights constituted a single act of infringement, warranting a total recovery of $750 if defendant is liable.
2. In the alternative, the statute should be considered unconstitutional to the extent it could be construed as authorizing more than ten time the actual damages, and recovery should be limited to $3.50 per recording as against a single noncommercial user for a single upload or download of an MP3 file for personal use.
3. Unclean hands based upon plaintiffs’ procurement of an unlicensed investigator, and commission of a Class B Misdemeanor under N.Y. General Business Law § 70, as well as unlawful pretexting and invasion of defendant’s privacy.
4. Since the amended complaint makes no mention of any enumerated acts of infringement, but instead seeks recovery for a series of acts (the operation of an online media distribution system to infringe plaintiffs’ copyrights), plaintiffs cannot recover statutory damages, costs, or attorneys fees for any sound recording copyrights registered with the U.S. Copyright Office subsequent to the date on which defendant first began using Kazaa, under 17 U.S.C. § 412. (See, e.g., Homkow v. Musika Records, Inc., 2008 U.S. Dist. LEXIS 14079 (S.D.N.Y. February 26, 2008); Irwin v. ZDF Enters. GmbH, 2006 U.S. Dist. LEXIS 6156 (S.D.N.Y. 2006); Shady Records, Inc. v. Source Enters., 2004 U.S. Dist. LEXIS 26143 (S.D.N.Y. 2004)).
5. Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice.
Kazaa is itself named in a class action.
A suit lodged by Catherine Lewan says it designed its software, “in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so,” according to a court document.
. .Stumble It!
p2pnet – MPAA backs RIAA in p2p case, March 18, 2006
Recording Industry vs The People – Tenise Barker files answer to amended complaint in Elektra v. Barker, July 28, 2008
class action - Michelle Santangelo vs the RIAA, July 16, 2007
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