Major labels today prevailed in a federal District Court in New York on a controversial legal question over unauthorized sharing of music files. In denying a motion to dismiss the labels' complaint, the court provided specific language for the labels to use when suing a file-sharer for simply making an unauthorized music file available in a Kazaa "shared folder."

Under copyright law, copyright owners have the exclusive rights to reproduce, distribute, perform or display to the public or to make a derivative use of a copyrighted work. Some lawyers have argued that simply making a copyrighted work "available" for distribution is not an infringement of any right; there must be an actual transfer of the work before anyone can be held liable for infringement.

Major labels sued Tenise Barker (incorrectly called Denise Barker in the complaint) in Aug. 2005 for copyright infringement. The complaint claims that labels' investigators identified a Kazaa user named [email protected] with more than 600 music files. The labels filed a "John Doe" lawsuit to obtain a subpoena to learn her true name. Barker was then named as a defendant in the suit.

Barker fought the claim, raising arguments in a motion to dismiss that the complaint wasn't sufficiently specific about her alleged infringement and that she could not be held liable for simply making music files available in a Kazaa shared folder. From a shared folder, other Kazaa users can download the music to their computers.

The Electronic Frontier Foundation and the Computer & Communications Industry Assn./U.S. Internet Industry Assn. (CCIA/USIIA) filed briefs supporting Barker's arguments.

Although copyright law does not define a "distribution," it does define "publication."

The law states that publication is "the distribution of copies or phonorecords [i.e., audio copies of sound recordings] of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

The District Court today agreed with labels that a distribution is synonymous with a publication, so that offering to distribute copies or phonorecords of music could result in liability. However, the court stated that the labels' complaint in the case did not state the claim properly.

Justice Kenneth Karas wrote that a plaintiff must allege in the complaint that the defendant "made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." The labels' complaint alleged that Barker made the recordings available for distribution to others - not that she "offer(ed) to distribute copies or phonorecords to a group of persons for purposes of further distribution."

The court denied the motion to dismiss since the complaint alleged other claims that could support an infringement action. In addition, the judge gave the labels 30 days to amend the complaint to add the proper wording to support a "made available" claim.

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