Motion to dismiss in copyright infringement case against defendant user of media sharing program Cases of Interest >  IP >  Copyright Cases of Interest >  Cyberlaw

Elektra Entm't Group, Inc. v. Barker

Elektra Entm't Group, Inc. v. Barker, 2008 U.S. Dist. LEXIS 25913 (Mar. 31, 2008).

The plaintiffs, Elektra, UMG Recordings, and Virgin Records, are leading record labels and sound recording copyright owners of a lot of music. Defendant is an individual who had an account with Kazaa, a media sharing program. After filing a “John Doe” complaint the plaintiffs received a court order to facilitate finding out from Verizon, the registrant, the person behind the IP address on Kazaa.

The defendant filed a 12(b)(6) motion to dismiss the plaintiffs' claim that she violated exclusive distribution rights by “making available” 615 music files to the Kazaa network. She argued that there is no statutory right to exclusively “make available” copyrighted material.

The court found that the distribution right can be violated by the offer to distribute, but it held that plaintiffs’ “make available” claim in this case does not confer the same liability as an actual transfer of copyrighted material. The court recognized that some circuits have interpreted the rights to include a “make available” right (including A&M v. Napster), but most other courts have been hesitant to read this into the statute.

This court found that the plaintiffs did not adequately allege that the defendant violated their rights by offering to distribute the music, however, the court still denied defendant’s motion to dismiss because the plaintiffs did allege that the defendant also distributed their music. The court also ordered the plaintiffs to amend their complaint pursuant to the holding of this opinion regarding the “make available” right.

In dicta, the court noted that for the purposes of exclusive rights under the copyright act, “distribution” is synonymous with “publication.”

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