Elektra v. Barker

Citation: Elektra Entertainment Group, Inc. v. Barker, 2008 WL 857527 (Mar. 31, 2008).

Factual Background
The plaintiffs are owners or licensees of the copyrights in certain sound recordings (the "Copyrighted Recordings"). They alleged that “the Defendant, without the permission or consent of Plaintiffs, has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.” While the complaint did not identify the “online media distribution system” used by the defendant, the court noted that “two of the Exhibits attached to the Complaint appear to be screen-shots of the Kazaa peer-to-peer file sharing program.” The plaintiffs claimed that the defendant had “611 music files on her computer that she offered freely for download to other Kazaa users.” There was no allegation that any of those files were ever copied or downloaded by anyone from the defendant’s computer.

The defendant was sued for copyright infringement. She moved for summary judgment, inter alia, on the basis that “making the Copyrighted Recordings available for distribution to others,” failed to state a claim upon which relief could be granted.

Trial Court Decision
Defendant’s motion to dismiss was rejected by the trial court. The court found that “the Complaint adequately puts Defendant on notice of the alleged infringing acts undertaken by Defendant. In particular, Exhibit B of the Complaint is alleged to be a copy of Defendant's ‘shared folder’ as it appeared on her computer. Plaintiffs submit that Exhibit B provides specific information about Defendant's infringement of Plaintiffs' copyrights, including the network used by Defendant, Defendant's alias, and a comprehensive list of infringed works. . . . Thus, this Complaint gives Defendant adequate notice of the works subject to Plaintiffs' claim and the grounds upon which Plaintiffs allege Defendant's infringement.”

As to the defendant’s argument that the plaintiffs failed to allege that there was any actually downloaded or distributed the copyrighted recordings, the court held that it “must assume the truth of all well-pleaded allegations of infringement. Here, Plaintiffs, in fact, allege that Defendant did distribute (and/or made available) Plaintiffs' protected works. This is sufficient under Rule 8.”

As to whether the Copyright Act supports a “making available” claim under Section 106, the court looked to the definition of “publication” in Section 101, which indicates that “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” The court, quoted selected portions of the legislative history of the 1976 Copyright Act and several appellate court decision, held “the terms ‘distribute’ and ‘publication to be synonymous.” 2008 WL 857527, at *5.

The court, however, did note that the case law for the “make available” theory of liability is quite limited. Id. at *6. “The great majority of courts that have considered the question, however, have stopped short of fully endorsing the ‘make available’ right. Instead, many such courts have expressed interest in the possible viability of the ‘make available’ right, without expressly reading the right into the statute or otherwise resolving the issue.” Id. at *7. The court concluded that “liability under Section 106(3) requires that Plaintiffs -- to be faithful to the statute -- 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.” This, the plaintiffs failed to allege. Hence, the court held that “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.” However, the court still denied the defendant’s motion because “Plaintiffs have adequately alleged that, in addition to making Plaintiffs' works available, Defendant distributed Plaintiffs' copyrighted works. Thus, dismissal is not appropriate at this stage.” Id. at *8.