p2pnet news view | RIAA News:- The appellant’s brief filed yesterday in the United States Court of Appeals for the Second Circuit in Arista Records v. Does 1-16, a case targeting 16 students at the State University of New York in Albany, attacks the RIAA litigation process.

The brief starts out:

This is one of an estimated 30,000 cases brought since 2003 in federal district courts around the nation by members of the Recording Industry Association of America (RIAA), alleging copyright infringement by the downloading and filesharing of recorded music over the internet. Although the cases are always brought in the names of record company plaintiffs who allege that they are the owners or proprietors of the copyrights involved, it is undisputed that the RIAA is the real party in interest, and that it controls and determines the course and strategy of the litigation, and references to the RIAA herein should be understood in this light.

This flood of litigation has been brought supposedly to stem the detrimental effect on sales of compact disks caused by the availability of recorded music on the internet, although the extent of that effect has been vigorously disputed by disinterested scholars, see infra at 7 n. 3. This appeal appears to raise issues of first impression in the Second Circuit arising from this campaign.

The RIAA`s theory in these cases is that anyone who downloads song files from the internet and makes them available to anyone by way of so-called peer-to-peer software (which enables users to exchange files directly between their computers without intermediate servers) has violated both the copyright owner`s right to make copies, contained in 17 U.S.C. § 106(1), and the distribution right of § 106(3). Its position, moreover, is that the distribution right is violated whether or not any copies have actually been distributed, and that merely making song files available to others is an infringement of that right.

However, the right to make a personal copy of copyrighted material may be protected as fair use, 17 U.S.C. § 107; Sony Corp. of America, Inc. v. Universal City Studios, Inc., 464 U.S. 417 (1984). Moreover, as will be shown, infringement of the distribution right requires the actual distribution of copies, and merely making copies available without more does not violate the distribution right. In other words, the attempted distribution of copyrighted materialwhich is all that plaintiffs-appellees allegeis not infringement and is not actionable.

This nationwide litigation campaign has been seriously detrimental to the fair administration of justice and the public policy importance of establishing clear boundaries to copyright law, and has imposed enormous burdens on the federal courts. The RIAA has used questionable investigations, unsupported and erroneous legal theories, ex parte applications and communications with court personnel, violations of the rules against joinder of unrelated defendants, and
abusive litigation tactics against individuals, many of whom are completely innocent, and none of whom should reasonably expect to find themselves forced to defend their personal use of computers in federal courts.

District Judges and commentators have often criticized the RIAA`s tactics and the legal theories behind them , but the litigation continues, with seemingly little effect on the public`s unflagging desire and intention to download music from the internet.

And it argues, among other things, that

• there is a qualified First Amendment privilege of anonymity;
• the plaintiff has an obligation to put in a prima facie case;
• the RIAA’s complaint fails to meet pleading standards;
• the RIAA’s technology and methodology are too flawed and unreliable to be relied upon by the courts;
• the RIAA’s inability to identify proper defendants is not a basis for the courts to bend the rules to assist the RIAA; and
• the defendant should be awarded a reasonable attorneys fee.

The RIAA’s subpoena, and all lower court proceedings, have been stayed during the pendency of the appeal.

The RIAA’s responsive brief is due June 25th; appellant’s reply brief is due July 6th; argument will be August 10th or later.

Ray Beckerman - Recording Industry vs The People

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May, 2009