Is the RIAA’s “Making Available” Argument Still Valid?

In short, the concept of "making available" means that any files available for upload on one's hard drive while using a file-sharing program or site carry the same infringement weight, regardless of whether they are actually downloaded.

Since the more recent Barker case didn't go to trial, the "making available" argument wasn’t tested again in court, but an order back in May from the judge involved in the Thomas case has shed light on the fact that "making available" may soon no longer be defensible.

"The Court is contemplating granting a new trial for a different reason," U.S. District Court Judge Michael Davis noted in his May 15 order, "on the grounds that the Court committed a manifest error of law when, in Jury Instruction No. 15, it instructed the jury that '[t]he act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.'"

"In National Car Rental System, Inc. v. Computer Associates Int’l, Inc.," the order continued, "the Eighth Circuit stated that ‘[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’ . . . This statement appears to require that actual dissemination occur in order to infringe the distribution right under the Copyright Act. Neither party presented this Eighth Circuit case to the Court. The Court further notes that, at least one authority relied upon by Plaintiffs in advocating Jury Instruction No. 15, has since been vacated, and, on reconsideration, that court has now held that making sound recordings available for distribution is not actionable under the Copyright Act and that 'actual distribution' is required."

Barker also argued that her belief that not everything she downloaded was covered by copyright somehow pre-empted her culpability, and used an "unclean hands" argument against the RIAA's unlicensed investigator.

"Unclean hands," the defense letter stated, "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."

Interestingly, the Barker case's settlement is a matter of public record, unlike most other settlements, so even though this case won't be the one to test "making available" and several other defenses in the courtroom, Barker's local law firm (Beckerman Legal of Forest Hills, NY) has provided grounds for other RIAA defendants to try their luck at both the constitutionality of the fines as well as the efficacy of particular arguments initiated as part of Barker's initial defense.

Should Barker default on payment, the RIAA can enter a summary judgement, but only for $12,100.