"Making available" case ends in a legal victory for the music industry

Bronx resident Denise Barker will pay the Recording Industry Association of America $6,050 to settle Elektra v. Barker (PDF), a lawsuit surrounding music shared over the Kazaa P2P network. The amount equals out to an expensive $756 per song for eight tracks from artists ranging from Lenny Kravitz to DMX.

Barker’s case took an unusual turn a couple of weeks ago, when she admitted liability for sharing the songs and instead proceeded to attack the characteristics of the case presented against her, including an attempt to challenge the constitutionality of the Copyright Act and the RIAA’s use of an unlicensed investigator and unlawful pretexting techniques.

According to copyright law blog Recording Industry vs The People, run by her lawyer, Barker argued that RIAA’s claimed statutory damages range anywhere from 2,142 to 428,571 times the actual damages inflicted – arguing instead that she should be held liable for no more than $3.50 per song per upload.

Elektra v. Barker was one of the spotlight cases for the concept of “making available,” a tactic that allows defendants to be held liable for copyright infringement merely for the act of making a song available for download – regardless of whether they actually uploaded a single byte. This is commonly raised through a P2P application’s “shared folders” feature, which is designed to store the library of music that the user both downloads to and makes available for upload to others.

Barker previously argued that the RIAA could not prove she shared any music simply by making it available in her computer’s shared folders, and as a result of this and other arguments the case took close to three years to reach its conclusion.  Worse, the amount that the RIAA won is merely double its standard settlement rate.

Court opinion, up until recently, favored the RIAA in the “making available” debate, but the pendulum has since shifted towards the defendant: the $222,000 legal victory for the RIAA at the expense of Minnesota woman Jammie Thomas is undergoing reevaluation by its judge, who, prompted by recent cases in Arizona and Florida, voiced his unease with a jury instruction that required Thomas to be held liable for the contents of her shared folder. The RIAA argues that shared folders are the equivalent to a DVD table, whereby a pirate displays his or her goods openly for others’ perusal.

Despite the more than 20,000 lawsuits under its belt, the heavy majority never make it to trial. The few that do have generally ended up in the RIAA’s favor, but both sides of the debate have enjoyed a fair share of legal victories. In some cases, the waves of prelitigation letters sent to college students – seemingly the RIAA’s favorite target – enjoyed a 99.6% capitulation rate at one university, with students settling for amounts ranging from $3,000 to $5,000 USD.

To cover her settlement, Barker will make 55 payments of $110, with the last payment made in February 2013.

"This is about the Internet.  Everything on the Internet is encrypted. This is not a BlackBerry-only issue. If they can't deal with the Internet, they should shut it off." -- RIM co-CEO Michael Lazaridis

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