Last Friday, January 26, one of the coldest days in recent New York City history. It was also the day Warner Music (US), EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany), the members of the Big 4 Organized Music cartel, sought to cast a permanent freeze on the activities of millions of their customers in the US, forcing them to comply with their vested interest dictates, or face potentially ruinous civil court proceedings..

They were appearing at an oral hearing before judge Kenneth Karas in Elektra v Barker, a landmark case lodged by the Big 4 record labels against Tenise Barker, a single New York woman represented by Ray Beckerman, the New York lawyer who runs the Recording Industry vs The People blog.

The RIAA are arguing that anyone with a shared folder containing legally obtained copyrighted files which has been online, even for a second, is guilty of copyright infringement.

Present to see how things would shake out were MPAA (Motion Picture Association of America) and Department of Justice representatives, among others. Richard A. Altman, a lawyer representing Woody Raymond, the son of Marie Lindor, RIAA victims both, was also there.

Here's Altman on the hearing

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For an IP lawyer, there is nothing as enjoyable as watching two smart lawyers and a VERY smart judge debating the fine points of copyright law. Those of you who opine on these matters but always need to hedge by saying 'IANAL' (“I am not a lawyer”) might be interested in the observations of someone who can say “IAAL.”

It happened last Friday in Judge Kenneth Karas’s courtroom, when Ray Beckerman and Richard Gabriel squared off on behalf of their clients in Elektra v Barker, pitting the usual suspects against each other: The RIAA and its arrayed forces dedicated to stamping out the unspeakable horror of copying recorded music against a lone, often computer-illiterate individual, in this case a Bronx nursing student. Judge Karas is an astonishingly youthful-looking 42, of endless patience and courtesy, with a knack for creative metaphors and penetrating and surprising questions that get to the heart of the matter.

He also was able to keep me uncertain as to his leanings, by his skill in challenging the arguments of both lawyers equally.

The procedural issue before Judge Karas was only whether the complaint as written contains sufficient statements to satisfy the legal requirements for stating a copyright infringement claim. The judge is not, at this point, concerned at all with whether the plaintiffs can prove their claims, or what the evidence might be to support them, but only with whether the statements are enough. The reason for this is that no defendant should be burdened with having to defend herself if the claim as written has no chance to succeed because it is insufficient under the applicable law.

The main legal issue raised by the plaintiffs’ form complaint is whether a defendant who merely “makes available” copyrighted files is an infringer.

Under section 106 of Title 17, the owner of a copyrighted work has among other things, the exclusive right to, and to authorize someone else to, reproduce the work, or distribute copies of the work “by sale or other transfer of ownership, or by rental, lease, or lending.” The record companies would like to expand the definition to include the mere presence of song files on the defendant’s computer illegal, on the theory that their presence “makes available” those files to anyone, regardless of whether anyone actually accesses those files.

They further allege in their form complaints that defendant is using an “online digital distribution system,” a term nowhere defined in the copyright law, to “download, distribute and/or make available for distribution” plaintiffs’ recordings. The question is whether this vagueness is enough.

Beckerman’s point was a copyright infringement claim must state when, where, how and by whom a song was copied, and that merely “making available” is legally meaningless without an allegation that copies were actually disseminated. An infringement claim must state the specific circumstances, and none of the plaintiffs’ thousands of complaints do so.

Furthermore, a violation of the distribution right requires an actual sale or transfer, not merely an offer to do so.

Gabriel argued many lower court decisions had upheld the validity of their complaint, and that “making available” is a violation of the plaintiffs’ distribution right, whether copying takes place or not. He made the further argument that distribution took place when plaintiffs’ agents and investigators viewed the files by looking at the song lists on Kazaa. Beckerman responded that a copyright owner cannot infringe his own copyright.

But then Judge Karas posed an apt analogy:

If I leave some papers (or a paper clip, he might have said) here on the bench, and authorize you to take them, have I distributed them even if you don’t take them? Don’t you actually need to pick them up?

Beckerman then said that plaintiffs always tried to bring up new matters that were not in their complaint, because they always want to be broad and nonspecific, so as to keep their options open as the case goes forward. But they can't do this on a motion to dismiss, which tests the validity of the statements in the complaint, and nothing else.

He said the case should be dismissed because it would force the record industry to do proper and thorough investigations BEFORE bringing suit, not after, and to be in possession of real evidence of copying or distribution.

What they do now is simply conclude, on the basis of a cursory search by their investigators, that the downloading of a song to a particular IP address constitutes infringement by the person who might have used that address at the time, and then sue that person with a boilerplate complaint.

The lawyers further argued over whether the plaintiffs’ claims of “continuous infringement” had any meaning, Beckerman saying copying claims had to be specific, and that the notion of continuous infringement made no sense. The lawyers and the judge talked about the meaning of “authorized,” Congressional intent in 1976 (when the present statute was enacted) and the significance of one judge having refused to decide a case because he said he did not understand the technology. Judge Karas suggested that someone should have bought that judge an iPod.

There have been several decisions by other district judges in the Southern District of New York denying motions like this one, but Beckerman pointed out that there was still no binding authority, and that all of these decisions were the result of judges having “punted” by simply going along with one early decision. There is a great deal of case law on both sides of these issues, but none of it is squarely controlling.

Judge Karas said that whatever he decided, he would not punt.

My own opinion, for what it is worth, is that these cases (and I represent several defendants) represent a considerable perversion of the purposes of the copyright laws, and that I'd be delighted to see a courageous federal judge say so.

The thousands of cases brought by the recording industry around the country are fundamentally an abuse of the judiciary to intimidate ordinary citizens, and to send a message. They are not at all about protecting creativity for the benefit of all of society which is, after all, the only reason there are copyright laws in the first place.

As the Constitution says, the fundamental purpose of copyright and patent laws is “to promote the Progress of Science and useful Arts.”

But what do I know? IAAL, but IANAJ.

Richard A. Altman

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