Joshua Rand Kagan, Attorney-At-Law

Capitol v. Thomas: For RIAA, Better Than “Making Available” May Be Difficult To Prove

Last Wednesday a federal judge declared a mistrial in Capitol v. Thomas and set aside the judgment for the plaintiffs when he found that the theory of “making available” may not have been sufficient to constitute infringement.¹ The core of the RIAA’s position here is that Thomas infringed by merely offering to distribute copies of a work from her computer, even if no one ever actually downloaded a single copy. The problem with this sort of a theory lies of course in the Copyright Act. While § 106(3) provides recovery for “distribution,” nowhere does the Act permit recovery for “attempted” copyright infringement of any kind.

If you haven’t been following this case, the solution might seem obvious. Why doesn’t the copyright owner simply present evidence that the defendant actually distributed some copies? But it’s not that simple, and I don’t think the RIAA can win this time. Here’s why.

Recording companies identify plaintiffs through a fairly crude process.² When an Internet user runs a file-sharing application that uses the peer-to-peer model, the file-sharing application typically searches the user’s computer for media files and indexes all that it finds. The index will normally contain a list of the audio files sorted by artist, album, genre, and some other criteria. It then uploads this index to another computer on the peer-to-peer network with a fast connection and large storage capacity. The computers that store indexes of other users’ files are commonly called “supernodes,” while other users are called simply “nodes.”

When one node on the network wants to find a particular recording, it submits a search query to a supernode. The supernode returns a response that indicates which computers on the file-sharing network have copies of the file along with the IP addresses of those computers. When a copyright owner (or one of its contractors such as MediaSentry, a company that provides online copyright enforcement services) wants to identify infringers, it connects to a file-sharing network as a node and searches for the name of a recording for which it owns the copyright. When the supernode returns a list of computers that are offering the file for download, the copyright owner sends another query to the supernode called “find more from this user” that returns a list of all of the files being offered from one of those computers. The copyright owner then brings suit against the Internet subscriber using that IP address for damages arising from infringement of the copyright owner’s exclusive distribution right under 17 USCS § 106(3).

Assuming that the indices generated by the defendants’ computers accurately convey the media files that are hosted by that node, the copyright owner now has an accurate list of files that the defendant is making available to the public–nothing less and nothing more. The node is offering these files for download and, if a third party wants to initiate a file transfer, such a transfer will likely occur. But neither the supernode nor the node contains any evidence that such a transfer actually took place. In other words, the copyright owner has plenty of evidence that the defendant made an offer to distribute infringing copies but no evidence that anyone actually took him up on that offer. Worse yet, given the number of nodes available on most file-sharing networks at any one time (typically millions or more), for popular sound recordings and movies, it is actually exceedingly unlikely that most nodes have ever consummated an outgoing transfer because there are so many other nodes with copies of the same content.

In a court filing, an RIAA attorney contended that ”requiring proof of actual transfers would cripple efforts to enforce copyright owners’ rights online – and would solely benefit those who seek to freeload off plaintiff’s investment.”³ If the plaintiffs continue to limit themselves to the methods I described above, I don’t doubt this.  But there’s no question in my mind that “making available” is not equivalent to any of the exclusive rights enumerated in the Copyright Act.⁴ To win with the evidence they have, the plaintiff would need to in effect fashion a new kind of claim for attempted copyright infringement. In the Ninth Circuit, judges have already resisted such attempts.  In Perfect 10 v. Amazon.com, the Court in dicta blocked what it called “the proposition that merely making images ‘available’ violates the copyright owner’s distribution right.”⁵ A separate line of cases has also evolved out of an Eighth Circuit case⁶ that has been applied to file-sharing actions. These Judges consistently find that “record companies must show that an unlawful copy was disseminated ‘to the public.’”

The problem here is that, because of the way the Internet works, we don’t really have those kinds of records in an easily accessible form anywhere. The RIAA seems to understand this.  It’s one thing to use the discovery process to find out what a particular computer has downloaded. That’s trivial. But finding out what other computers have downloaded from a defendant, while not impossible, could be extremely difficult.

For this reason, I don’t think Capitol and MediaSentry can win this one.

This weblog is an informational resource only. It is not designed to offer legal advice.

1. Full text at http://www.eff.org/files/filenode/capitol_v_thomas/10112270717.pdf. [↩]
2. Elektra Entm’t Group, Inc. v. Barker, 2008 U.S. Dist. LEXIS 25913, 14 (S.D.N.Y. Mar. 31, 2008). [↩]
3. See http://blog.wired.com/27bstroke6/files/riaathomasbrief.pdf for full text of the filing. [↩]
4. I’m standing on the shoulders of giants. See, e.g., 2-8 Nimmer on Copyright, § 8.11[A] (2008); 4 William F. Patry, Patry on Copyright, § 13.11.50 (2008). [↩]
5. Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718-719 (9th Cir. Cal. 2007). [↩]
6. National Car Rental Sys., Inc. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 433 (8th Cir. Minn. 1993). [↩]