The free jammie movement: Is making a file available to other users over a: Peer-to-peer computer network sufficient to infringe the copyright owner's 17 U.S.C.§106(3) distribution right?0

Fordham Law Review

Volumn 78, Issue 2, 2009, Pages 983-1028

  Nicholds, Ken ^a  

^a School of Law   (United States)

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EID: 73049100978     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (467)

1. Kevin Kelly, Better Than Free, Edge, Feb. 5, 2008, http://www.edrge.org/ 3rd-culture/kelly08/kelly08-index.html.
2. See Recording Industry Association of America - Who We Are, http://riaa.org/aboutus.php (last visited Oct. 19, 2009) ("The Recording Industry Association of America (RIAA) is the trade group that represents the U.S. recording industry. Its mission is to foster a business and legal climate that supports and promotes our members' creative and financial vitality. Its members are the record companies that comprise the most vibrant national music industry in the world. RIAA members create, manufacture and/or distribute approximately 85% of all legitimate sound recordings produced and sold in the United States.").
3. See Spencer E. Ante, Inside Napster, BUSINESSWEEK, Aug. 14, 2000, at 112.
4. See Motion Picture Association of America, About Us, http://www.mpaa.org/ AboutUs.asp (last visited Oct. 19, 2009) ("The Motion Picture Association of America (MPAA) and its international counterpart, the Motion Picture Association (MPA) serve as the voice and advocate of the American motion picture, home video and television industries, domestically through the MPAA and internationally through the MPA. Today, these associations represent not only the world of theatrical film, but serve as leader and advocate for major producers and distributors of entertainment programming for television, cable, home video and future delivery systems not yet imagined.").
5. See About EFF, Electronic Frontier Foundation, http://www.eff.org/about (last visited Oct. 19, 2009) ("When our freedoms in the networked world come under attack, the Electronic Frontier Foundation (EFF) is the first line of defense. EFF broke new ground when it was founded in 1990 - well before the Internet was on most people's radar - and continues to confront cutting-edge issues defending free speech, privacy, innovation, and consumer rights today. From the beginning, EFF has championed the public interest in every critical battle affecting digital rights. Blending the expertise of lawyers, policy analysts, activists, and technologists, EFF achieves significant victories on behalf of consumers and the general public. EFF fights for freedom primarily in the courts, bringing and defending lawsuits even when that means taking on the US government or large corporations.").
6. Id.
7. Id.
8. See infra notes 113-114 and accompanying text.
9. See infra note 138 and accompanying text.
10. See infra note 138 and accompanying text.
11. See, e.g., Eric Bangeman, Thomas Verdict Overturned, Making Available Theory Rejected, ARS TECHNICA, Sept. 24, 2008, http://arstechnica.com/news.ars/ post/20080924-thomas-verdict-overturned-making-available-theory-rejected.html ("[T]he ruling was another crushing blow to the RIAA's pet legal theory.").
12. See The New York Times, http://www.nytimes.com (last visited Oct. 19, 2009).
13. See Hulu, http://www.hulu.com (last visited Oct. 19, 2009).
14. See Add-ons for Firefox, https://addons.mozilla.org/en-US/firefox (last visited Oct. 19, 2009).
15. See Craigslist, http://craigslist.org (last visited Oct. 19, 2009).
16. See Wikipedia, http://wikipedia.org (last visited Oct. 19, 2009).
17. See infra note 118 and accompanying text.
18. Posting of Fred von Lohmann to Electronic Frontier Foundation Deep Links Blog, (Apr. 2, 2009).
19. See id.
20. 579 F. Supp. 2d 1210 (D. Minn. 2008).
21. See infra Part I.B.2.
22. See supra note 3.
23. See MGM v. Grokster, 545 U.S. 913, 919-20 (2005). Peer-to-peer (P2P) technology has become incredibly popular because extensive storage space and connectivity bandwidth for a central server are not required.
24. See id. at 920.
25. See id. at 920.
26. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 159 (D. Mass. 2008).
27. See id. at 160.
28. See Posting of Ernesto to TorrentFreak, http://torrentfreak.com/the- pirate-bay-100-popular-080518 (May 18, 2008).
29. See Richard Wachman, Pirates Still Have All the Best Tunes, Observer (London), May 27, 2007, Business at 4.
30. See What Is iTunes?, http://www.apple.com/itunes/what-is (last visited Oct. 19, 2009).
31. Posting of Erick Schonfeld to TechCrunch, http://www.techcrunch.com/2009/ 01/06/itunes-sells-6-billion-songs-and-other-fun-stats-from-the-philnote (Jan. 6, 2009).
32. See Andrew Orlowski, For Every DRM Download, 16 P2P Swaps, REG., June 23, 2005, http://www.theregister.co.uk/2005/06/23/guardian-bogus-p2p. Another study estimated that one billion music files are shared every day. JOHN F. GANTZ ET AL., THE EXPANDING DIGITAL UNIVERSE 1 (2007) (citing JOHN GANTZ & JACK B. ROCHESTER, PIRATES OF THE DIGITAL MILLENIUM 175 (2005)).
33. See Steve Jobs, Thoughts on Music, http://www.apple.com/hotnews/ thoughtsonmusic (Feb. 6, 2007), An iPod is a portable music player that plays music and video files.
34. See iPod Classic Product Introduction, http://www.apple.com/ipodclassic (last visited Oct. 19, 2009)
35. see also iTunes Software License Agreement (Mar. 15, 2007), available at itunes.pdf ("IMPORTANT NOTE: This software may be used to reproduce materials. It is licensed to you only for reproduction of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce. This software may also be used for remote access to music files for listening between computers. Remote access of copyrighted music is only provided for lawful personal use or as otherwise legally permitted. If you are uncertain about your right to copy or permit access to any material you should contact your legal advisor.").
36. Apple has recently entered into an agreement with record companies to eliminate digital rights management (DRM), and therefore has eliminated the technical block to copying music files bought via iTunes. See Posting of Schonfeld, supra note 30.
37. See Dan Sabbagh, Average Teenager's iPod Has 800 Illegal Music Tracks, TIMES (London), June 16, 2008, at 13.
38. See Press Release, The NPD Group, Consumers Acquired More Music in 2007, but Spent Less (Feb. 26, 2008), http://www.npd.com/press/releases/press-080226a. html.
39. THE UNIV. OF HERTFORDSHIRE & BRITISH MUSIC RIGHTS, 2008 SURVEY INTO THE MUSIC EXPERIENCE AND BEHAVIOUR IN YOUNG PEOPLE 11 (2008).
40. See RIAA - Piracy: Online and on the Street, (last visited Oct. 19, 2009) ("Across the board, this theft has hurt the music community, with thousands of layoffs, songwriters out of work and new artists having a harder time getting signed and breaking into the business.").
41. See, e.g., BIRGITTE ANDERSEN & MARION FRENZ, THE IMPACT OF MUSIC DOWNLOADS AND P2P FILE-SHARING ON THE PURCHASE OF MUSIC: A STUDY FOR INDUSTRY CANADA 3 (2007), ("Our review of existing econometric studies suggests that P2P file-sharing tends to decrease music purchasing. However, we find the opposite, namely that P2P file-sharing tends to increase rather than decrease music purchasing.")
42. Felix Oberholzer-Gee & Koleman Strumpf, The Effect of File Sharing on Record Sales: An Empirical Analysis, 115 U. CHI. J. POL. ECON. 1, 1-2 (2007) ("Downloads have an effect on sales that is statistically indistinguishable from zero. Our estimates are inconsistent with claims that file sharing is the primary reason for the decline in music sales during our study period.").
43. See RIAA, 2007 YEAR-END SHIPMENT STATISTICS 1 (2007) (explaining that CD album shipments in 2000 were 942, 500, 000, and in 2007 were 511, 100, 000, while CD singles shipments in 2000 were 34, 200, 000, and in 2007 were 2, 600, 000).
44. See Ayala Ben-Yehuda, Digital Downloads Break a Billion in 2008, Billboard.BIZ, Dec. 18, 2008, e3i260af0867f21cdd3cbf806fcf4334326 ("Through Dec. 14 [2008], 1, 001, 000, 000 digital tracks were sold in the United States.").
45. See Posting of C.A. Joyce to Swivel, http://www.swivel.com/graphs/show/ 4146447 (Dec. 28, 2006) (graphing the United States music sales on vinyl, cassette, and CD from 1975-2005).
46. See RIAA, supra note 39 (explaining that the total dollar value of music sales in 2000 was $14, 323, 700, 000, and in 2007 was $10, 370, 000, 000).
47. See Coolfer: Music and the Industry, 2009/0l/2008-the-result.php (Jan. 2, 2009, 06:32 EST) (explaining that 2008's "track equivalent albums, " where an "equivalent album" consists of ten digital tracks, numbered only 107, 000, 000 in comparison to 362, 000, 000 CDs sold in 2008 and that although digital track sales, and therefore number of units sold, had grown, the overall number of albums sold declined 15% from 2007, meaning that revenues had declined).
48. See Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys. Inc., 180 F.3d 1072 (9th Cir. 1999).
49. See A& M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
50. See In re Aimster, 334 F.3d 643 (7th Cir. 2003).
51. See MGM v. Grokster, Ltd., 545 U.S. 913 (2005).
52. See Arista Records LLC v. Lime Group LLC, 532 F. Supp. 2d 556 (S.D.N.Y. 2007).
53. 545 U.S. 913.
54. Id. at 923.
55. Id. at 941 ("MGM's evidence in this case most obviously addresses a different basis of liability for distributing a product open to alternative uses. Here, evidence of the distributors' words and deeds going beyond distribution as such shows a purpose to cause and profit from third-party acts of copyright infringement. There is substantial evidence in MGM's favor on all elements of inducement.").
56. Id. at 923.
57. RIAA, RIAA Statement on MGM v. Grokster Supreme Court Ruling (June 27, 2005), http://www.riaa.com/newsitem.php?id=DE79FC7C-A22E-931E-CF31-59E03950450C ("This decision lays the groundwork for the dawn of a new day - an opportunity that will bring the entertainment and technology communities even closer together, with music fans reaping the rewards.").
58. Nate Anderson, Has the RIAA Sued 18, 000 People.or 35,000?, ARS TECHNICA, http://arstechnica.com/tech-policy/news/2009/07/has-the-riaa-sued-18000-people- or-35000.ars (last visited Oct. 20, 2009) (quoting an RIAA spokeswoman confirming that roughly 18, 000 individuals have been sued by the RIAA, but that because suits were first filed as "John Doe" suits, the same individuals were sued twice, resulting in total lawsuits of over 30, 000);
59. see also Sarah McBride & Ethan Smith, Music Industry To Abandon Mass Suits, WALL ST. J., Dec. 19, 2008, at B1 (estimating 35, 000 lawsuits);
60. Posting of David Kravets to Wired, http://blog.wired.com/27bstroke6/2008/ 09/proving-file-sh.html (Sept. 4, 2008, 14:55 EST) (estimating 30, 000 lawsuits)
61. Jon Newton, p2pnet Tanya Andersen v RIAA Digest, P2PNET, http://www.p2pnet.net/story/16245 (last visited Oct. 19, 2009) (estimating 40, 000 lawsuits).
62. See, e.g., The Lefsetz Letter, 06/25/enemies-list (June 25, 2008) ("No one who sues his own customers can. [care] about them.").
63. See, e.g., Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234, 236 (S.D.N.Y. 2008) (quoting the RIAA's complaint alleging that the defendant used KaZaa (a filesharing network) 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").
64. See Or1owski, supra note 31 (observing that "file sharing surges after each publicity blip").
65. THOMAS KARAGIANNIS ET AL., IS P2P DYING OR JUST HIDING? 1 (2004), available at http://www.caida.org/publications/papers/2004/p2p-dying/p2p-dying. pdf
66. see also ELEC. FRONTIER FOUND., RIAA V. THE PEOPLE: FIVE YEARS LATER 9-10 (2008), available at (citing concurring studies by computer scientists from University of California San Diego and University of California Riverside, Big Champagne (a provider of filesharing network media measurement), NPD Group (a marketing research firm), BayTSP (a filesharing network monitor for content owners), and Pew Internet and American Life Project (a nonprofit research organization)).
67. See McBride & Smith, supra note 54.
68. See ELEC. FRONTIER FOUND., supra note 58, at 11 (citing a 2004 study saying that 88% of children between eight- and eighteen-years-old believed that filesharing downloading was illegal).
69. See id. (citing studies of high school students reporting that eighty-nine percent downloaded music even though believing it was against the law, and that seventy-two percent of those who got music online did so through filesharing networks).
70. Antony Bruno, Poll: 45% Say P2P OK, BILLBOARD.BIZ, Mar. 16, 2009, http://ww.billboard.biz/bbbiz/content-display/industry/ e3i01058b4cfb43337685fb7e8ca42dea22.
71. HUMAN CAPITAL, YOUTH AND MUSIC SURVEY 2009, at 6 (2009), available at Error! Hyperlink reference not valid.
72. See McBride & Smith, supra note 54.
73. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 158 (D. Mass. 2008).
74. The RIAA first used MediaSentry as its investigator, but later decided to use another investigator, DtecNet Software ApS, with some speculating that this was because of several complaints regarding the privacy of the individuals investigated, and the legality of the investigative methods used. See Sarah McBride, Changing Tack, RIAA Ditches MediaSentry, WALL ST. J., Jan. 5, 2009, at B2.
75. See, e.g., London-Sire, 542 F. Supp. 2d at 157-158.
76. See, e.g., id.
77. See, e.g., Defendant's Reply Brief in Support of Her Motion for New Trial at 5, Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210 (D. Minn. 2008) (No.06-1497).
78. Capitol Records, Inc. v. Thomas, 2008, Id.
79. See, e.g., Interscope Records v. Leadbetter, No. C05-1149-MJP-RSL, 2007 WL 1217705, at *4 (W.D. Wa. Apr. 23, 2007)
80. Plaintiffs' Supplemental Brief Pursuant to May 15, 2008 Order at 2, Thomas, 579 F. Supp. 2d 1210 (No.06-1497) [hereinafter Plaintiffs' Supplemental Brief] ("Copyright owners typically have no way to monitor - much less prove - the actual transfer of those files.").
81. London-Sire, 542 F. Supp. 2d at 177 ("[T]ransfers on a peer-to-peer network are not observable by outside users.").
82. E-mail from Ray Beckerman to author (Oct. 30, 2008, 13:26 EST) (on file with author).
83. See supra notes 61, 66 and accompanying text.
84. See About Audible Magic, http://www.audiblemagic.com/company/about.asp (last visited Oct. 19, 2009). Another example of a tracking technology is from the Air Force Institute of Technology. It attempts to track allegedly infringing transfers via a unique code attributable to that file, but the technology developers admit difficulties in the speed of analysis, the updating of the database of those codes, and the fact that file sharers would likely use encryption to hide from the technology.
85. Duncan Graham-Rowe, Sniffing Out Illicit BitTorrent Files, TECH. REV., Feb. 12, 2009, http://www.technologyreview.com/computing/22107/page1
86. See Chris Williams, Belgian Judge Reverses Moon-on-Stick Music Copyright Ruling, REG., Oct. 27, 2008, http://www.theregister.co.uk/2008/10/27/scarlet- isp-belgium-reversal
87. See Plaintiffs' Supplemental Brief, supra note 72, at 2.
88. See, e.g., Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234, 236 (S.D.N.Y. 2008) ("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."
89. (emphasis added) (quoting Complaint for Copyright Infringement at 4, Barker, 551 F. Supp. 2d 234 (No. 05-CV-7340))).
90. See Plaintiffs' Supplemental Brief, supra note 72, at 17.
91. 118 F.3d 199 (4th Cir. 1997).
92. See id. at 201-02.
93. Id. at 201.
94. Id. at 203 ("Were this not to be considered distribution within the meaning of § 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.").
95. Plaintiffs' Supplemental Brief, supra note 72, at 2.
96. Miller v. Goody, 125 F. Supp. 348, 350 (S.D.N.Y. 1954).
97. Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 661-662 (1834) ("Congress, then, by this [copyright] act, instead of sanctioning an existing right, as contended for, created it. [and therefore] if the right of the complainants can be sustained, it must be sustained under the acts of congress.").
98. U.S. CONST, art. I, § 8 ("Congress shall have Power. to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.").
99. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) (explaining that copyright law "involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society's competing interest in the free flow of ideas, information, and commerce on the other hand").
100. Sony Corp. v. Universal City Studios, Inc. Id.
101. Brief of Amici Curiae Computer & Communications Industry Association & US Internet Industry Association in Connection with Defendant's Motion to Dismiss the Complaint at 4, Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234 (S.D.N.Y. 2008) (No.05-CV-7340) (citing U.S. Copyright Office, Circular 92: Copyright Law of the United States of America iii-viii (2003)).
102. 464 U.S. 417.
103. See id. at 430 & n.l1 (explaining that legislation has modified copyright law to adapt to the printing press, player pianos with perforated rolls of music, television, and audio tape recorder).
104. See Miller v. Goudy, 125 F. Supp. 348, 350 (S.D.N.Y. 1954) ("Prior to the Copyright Act of 1909, the manufacture of phonograph records was not an infringement of copyright. Thus, before the right to authorize the manufacture of phonograph records was given protection by statute, a recording of a work could be made without the author's consent. We must therefore look to the Copyright Act itself to see the extent of the protection given to the copyright owner." (citing White-Smith Music Publ'g Co. v. Apollo Co, 209 U.S. 1 (1908))).
105. 17 U.S.C. §§ 101-805 (2006).
106. See id. § 106 ("Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.").
107. See id. § 101 ("A 'derivative work' is a work based upon one or more preexisting works. [and] recast, transformed, or adapted.").
108. United States v. Am. Soc'y of Composers, Authors & Publishers, 485 F. Supp. 2d 438 (S.D.N.Y. 2007).
109. Professor Reese suggests that the drafters of the Act primarily intended for the display right to apply to transmissions over computer networks. R. Anthony Reese, the Public Display Right: The Copyright Act's Neglected Solution to the Controversy over RAM "Copies, " 2001 U. ILL. L. REV. 83, 83.
110. The EFF raised this argument in its amicus brief in Elektra Entertainment Group, Inc. v. Barker, but the court did not address the argument. Amicus Curiae Brief of the Electronic Frontier Foundation in Support of Defendant's Motion to Dismiss the Complaint at 12
111. Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234 (S.D.N.Y. 2008) (No.05-CV-7340) [hereinafter EFF Brief 2] ("Fundamental to the edifice of copyright law has been a distinction between the reproduction and dissemination of material objects - activities regulated by the reproduction and distribution rights - and the transmission of works to the public - activity regulated by the rights of the public performance and display." (citing Reese, supra, at 92-138)).
112. 17 U.S.C. § 106 ("[T]he exclusive rights to do and to authorize. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.").
113. Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 981 (D. Ariz. 2008) (quoting 2 DAVID NIMMER & MELVILLE B. NIMMER, Nimmer on Copyright § 8.11 [A], at 8-149 (2007));
114. see also id. ("'[A]n actual transfer must take place; a mere offer for sale will not infringe the right.'" (alteration in original) (quoting 2 PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 7.5.1, at 7:125 to 7:126 (3d ed. 2005)));
115. id. ('"Without actual distribution of copies of the [work], there is no violation of the distribution right.'" (quoting 4 William F. Patry, Patry on Copyright § 13:9, at 13-13 (2007))).
116. 17 U.S.C. § 101 (explaining that publication includes "[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display").
117. Id. § 106(3) (emphasis added). '"Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Id. § 101. "Material object" is not defined in the Act. "'Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed." Id. "A work is : 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." Id.
118. Id. § 115(d) ("A 'digital phonorecord delivery' is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.").
119. Id. § 115(c)(3)(A) (establishing a compulsory license to "distribute or authorize the distribution of a phonorecord of a nondramatic musical work by means of a digital transmission").
120. Section 112 discusses limitations on the exclusive rights where a "transmitting organization" is permitted to make a copy to make a broadcast so long as it destroys the original "copy or phonorecord" within six months of the first broadcast. Id. § 112(a)(1). Where transmitting organizations, such as local television networks, are receiving content via digital transmission, this language implies that the digital copy that they have made for themselves is a "copy" or " phonorecord" of the original. Under these "digital phonorecord" provisions, then, it would appear as though a file that is digitally transmitted via a filesharing network is a "material object" that is a "copy" or "phonorecord" as defined under § 101, and the transmission carries out a "transfer" as defined under the § 106(3) distribution right. See infra note 178 and accompanying text.
121. WIPO Copyright Treaty art. 6, adopted Dec. 20, 1996, S. treaty Doc. No.105-17, at 7 (1997), 2186 U.N.T.S. 121 (explaining that a copyright owner's rights include "the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership" (emphasis added)).
122. Id. art. 8 ("[A]uthors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them." (emphasis added)).
123. WIPO Performances & Phonograms Treaty art. 12, adopted Dec. 20, 1996, S. TREATY DOC. No.105-17, at 18 (1997), 2186 U.N.T.S. 203 (explaining that a copyright owner's rights include "the exclusive right of authorizing the making available to the public of the original and copies of their phonograms through sale or other transfer of ownership." (emphasis added));
124. see also id. art. 8 (explaining that a copyright owner's rights include "the exclusive right of authorizing the making available to the public of the original and copies of their performances fixed in phonograms through sale or other transfer of ownership." (emphasis added)).
125. 579 F. Supp. 2d 1210 (D. Minn. 2008).
126. See, Special Verdict Form, Thomas, 579 F. Supp. 2d 1210 (No. 06-1497), 2007 WL 3054014
127. Austin Modine, RIAA Hits Paydirt: Wins First Music-Sharing Jury Trial, REG, Oct. 5, 2007, http://www.theregister.co.uk/2007/10/05/riaa-wins-first- music-sharing-jury-trial A second jury trial has now completed, also finding the filesharer liable for copyright infringement. Jury Verdict Form, Sony BMG Music Entm't v. Tenenbaum, No. 03-CV-11661 (D. Mass. July 31, 2009) (awarding $22, 500 per song, for a total of $675, 000).
128. See Special Verdict Form, supra note 111.
129. See Chris Ayres, Mother Fined $220, 000 in Download Ruling, TIMES (London), Oct. 5, 2007, at 46.
130. See Greg Sandoval, For RIAA, a Black Eye Comes with the Job, CNET NEWS, Oct. 9, 2007, http://news.cnet.eom/For-RIAA%2C-a-black-eye-comes-with-the-job/ 2100-1027-3-6212374.html
131. See Virgin Records Am., Inc. v. Thomas, No.06-1497 (D. Minn. Aug. 31, 2007) (order denying motion to withdraw representation). The case was later renamed Capitol Records, Inc. v. Thomas after one record company withdrew, and finally renamed Capitol Records, Inc. v. Thomas-Rasset to reflect the correct name of the Defendant, Jammie Thomas-Rasset.
132. See Thomas, 579 F. Supp. 2d 1210;
133. Special Verdict Form, Capitol Records, Inc. v. Thomas-Rasset, No. 06-1497 (D. Minn. June 18, 2009).
134. See Free Jammie, http://freejammie.freeforums.org/ (last visited Oct. 19, 2009). Similarly, the defendant in the other filesharing case to complete a full jury trial also established a "Joel Fights Back" website.
135. Similarly, the defendant in the other filesharing case to complete a full jury trial also established a "Joel Fights Back" website. See Joel Fights Back - It's about more than just music, http://joelfightsback.com (last visited Oct. 19, 2009).
136. See Greg Sandoval, Hate the RIAA? Buy a 'Free Jammie' Thong, CNET News, Oct. 29, 2007, http://news.cnet.com/8301-10784-3-9806599-7.html?hhTest=l
137. see also Free Jammie Merchandise Store, http://www.cafepress.com/ freejammie (last visited Oct. 19, 2009).
138. Sandoval, supra note 117.
139. Jammie Thomas, I'm Fighting This Lawsuit for More Than Just Myself, duluth News Trib., July 6, 2008, at Bl, available at http://beckermanlegal.com/ Documents/080706DuluthNewsTribune.pdf.
140. See Sandoval, supra note 114 ("The image of a rich and gargantuan corporate entity steamrolling a woman with limited resources is etched into the minds of many onlookers, say public relations experts.").
141. 23 F.3d 1345 (8th Cir. 1994).
142. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1214-1216 (D. Minn. 2008).
143. Id. at 1216 ("The Court holds that distribution to [the investigator] MediaSentry can form the basis of an infringement claim.").
144. Complaint for Copyright Infringement at 4, Virgin Records Am., Inc. v. Thomas, No.06-1497 (D. Minn. Apr. 19, 2006), 2006 WL 1431921.
145. Plaintiffs' Proposed Jury Instructions at 10, Virgin, No.06-1497 (D. Minn. Sept. 17, 2007), 2006 WL 4821318.
146. Jury Instructions at 18, Thomas, 579 F. Supp. 2d 1210 (No.06-1497) ("The 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." (emphasis added)).
147. See Capitol Records, Inc. v. Thomas, No.06-1497 (D. Minn. May 15, 2008) (order requesting briefs as to whether the making-available jury instruction was in error).
148. 991 F.2d 426 (8th Cir. 1993).
149. Plaintiffs' Proposed Jury Instructions, supra note 125, at 10.
150. No. CV06-02076-PHX-NVW, 2007 WL 2409549 (D. Ariz. Aug. 20, 2007), vacated, No. CV06-02076-PHX-NVW, 2007 WL 3010792 (D. Ariz. Sept. 27, 2007)
151. Thomas, No. 06-1497 (D. Minn. May 15, 2008) (order requesting briefs as to whether the making- available jury instruction was in error).
152. Howell, 2007 WL 3010792.
153. Defendant's Second Memorandum of Law in Support of Her Motion for New Trial, Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210 (D. Minn. 2008) (No.06-1497)
154. Plaintiffs' Supplemental Brief Pursuant to May 15, 2008 Order, Thomas, 579 F. Supp. 2d 1210 (No. 06-1497).
155. Nate Anderson, Final RIAA/Jammie Thomas Briefs In; New Trial Decision Looms, Ars Technica, July 14, 2008, http://arstechnica.com/news.ars/post/ 20080714-final-riaajammie-thomas-briefs-in-new-trial-decision-looms.html
156. See About PFF, http://www.pff.org/about (last visited Oct. 19, 2009) ("The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. Its mission is to educate policymakers, opinion leaders and the public about issues associated with technological change, based on a philosophy of limited government, free markets and individual sovereignty.").
157. See MPAA Members Page, http://www.mpaa.org/AboutUsMembers.asp (last visited Oct. 19, 2009) (explaining that the MPAA's Board of Directors consists of representatives from Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLP, Walt Disney Studios Motion Pictures, and Warner Bros. Entertainment Inc.)
158. PFF Supporters, supporters.html (last visited Oct. 19, 2009) (explaining mat the supporters of the Progress & Freedom Foundation (PFF) include the following: AT& T, CBS Corporation, Comcast, Corporation, Cox Enterprises, DIRECTV, EMI Group, Entertainment Software Association, Intel Corporation, National Cable & Telecommunications Association, NBC Universal, The News Corporation Limited, Sony & BMG Music Entertainment, Inc., Time Warner, VeriSign, Inc., Verizon Communications, Viacom Inc., Vivendi, and The Walt Disney Company). As Thomas-Rasset noted, both the MPAA and the PFF represent other subsidiaries of the same parent companies of the plaintiffs in this case. See Defendant's Second Memorandum of Law in Support of Her Motion for New Trial, supra note 132, at 4-5 (pointing out that Sony Corporation, Vivendi, and EMI Group own companies that are plaintiffs and other companies mat have filed briefs as amici curiae).
159. See Proposed Brief of Amicus Curiae Motion Picture Association of America, Inc., Thomas, 579 F. Supp. 2d 1210 (No. 06-1497) [hereinafter MPAA Brief]
160. Amicus Curiae Brief of Thomas D. Sydnor of the Progress & Freedom Foundation Opposing the Motion for a New Trial, Thomas, 579 F. Supp. 2d 1210 (No. 06-1497) [hereinafter PFF Brief).
161. See Brief Amici Curiae of Electronic Frontier Foundation, Public Knowledge, United States Internet Industry Association, and Computer & Communications Industry Association in Support of Defendant Jammie Thomas, Thomas, 579 F. Supp. 2d 1210 (No.06-1497) [hereinafter EFF Brief]
162. Brief of Copyright Law Professors as Amici Curiae in Support of Defendant, Thomas, 579 F. Supp. 2d 1210 (No. 06-1497) [hereinafter Professors' Brief];
163. Memorandum of Amicus Curiae Intellectual Property Institute of William Mitchell College of Law in Support of Defendant's Motion for a New Trial, Thomas, 579 F. Supp. 2d 1210 (No. 06-1497).
164. Thomas, 579 F. Supp. 2d at 1226-1227 ("Jury Instruction No. 15 was erroneous and that error substantially prejudiced Thomas's rights. Based on the Court's error in instructing the jury, it grants Thomas a new trial.").
165. Plaintiffs' Memorandum in Support of Motion to Certify September 24 Order for Interlocutory Appeal and for Stay of Proceedings Pending Appeal, Thomas, 579 F. Supp. 2d 1210 (No.06-1497).
166. Capitol Records, Inc. v. Thomas, No.06-1497, 2008 WL 5423133, at * 2 (D. Minn. Dec. 23, 2008).
167. Date Certain Trial Notice at 1, Capitol Records, Inc. v. Thomas, No. 06-CV-1497 (D. Minn. Oct. 29, 2008).
168. Special Verdict Form, supra note 115, at 17-20.
169. See supra notes 111-112 and accompanying text.
170. Motion for a New Trial, Remittitur, and to Alter or Amend the Judgment, Thomas- Rasset, No.06-1497 (D. Minn. July 6, 2009).
171. Capitol Records, Inc. v. Thomas, No.06-1497, 2008 WL 5423133, at *1 (D. Minn. Dec. 23, 2008) ("The Court holds that there is not substantial ground for difference of opinion regarding whether distribution under § 106(3) requires actual dissemination. While Plaintiffs can point to a number of courts from other jurisdictions that have disagreed with this Court's conclusion, the Eighth Circuit Court of Appeals has explicitly held that actual dissemination is required.").
172. Thomas, 579 F. Supp. 2d at 1225.
173. See supra notes 86-91 and accompanying text.
174. Thomas, 579 F. Supp. 2d at 1216.
175. See supra note 102 and accompanying text.
176. See, e.g., Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234, 240 (S.D.N.Y. 2008) ("The first sentence of Section 106(3) and the definition of 'publication' are virtually identical.")
177. see also 17 U.S.C. § 101 (2006) ("'Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.");
178. id. § 106(3) (stating that the copyright owner has the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending").
179. See, e.g., Ford Motor Co. v. Summit Motor Prods., 930 F.2d 277, 299 (3d Cir. 1991) ("'Publication' and the exclusive right protected by section 106(3), then, are for all practical purposes, synonymous.");
180. Barker, 551 F. Supp. 2d at 243 ("[T]he Court finds, using Congress's words, that the distribution right of 106(3) may be infringed by '[t]he offer[ ] to distribute.."' (final two alterations in original) (quoting 17 U.S.C. § 101));
181. Arista Records LLC v. Greubel, 453 F. Supp. 2d 961, 969 (N.D. Tex. 2006) ("The right of distribution also has been identified as synonymous with the publication of a copyrighted work.");
182. Interscope Records v. Duty, No. 05CV3744-PHX-FJM, 2006 WL 988086, at *2 (D. Ariz. Apr. 14, 2006) ("'Distribute' is not defined under the Copyright Act, but the right of distribution is synonymous with the right of publication, and 'publication' is defined under the Copyright Act.") (citation omitted);
183. Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 401 n.2 (S.D.N.Y. 2002) ("The definition of 'publication' tracks the language of 17 U.S.C. § 106(3), which gives copyright holders the exclusive right 'to distribute copies. of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.' Section 106(3) therefore gives copyright holders the exclusive right of publication, among the other exclusive rights.").
184. See, e.g., London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 168 (D. Mass. 2008) ("[E]ven a cursory examination of the statute suggests that the terms are not synonymous.").
185. See id. at 169 ("By the plain meaning of the statute, all 'distributions. to the public' are publications. But not all publications are distributions to the public-the statute explicitly creates an additional category of publications that are not themselves distributions.").
186. See Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1220 (D. Minn. 2008) ("The Court concludes that simply because all distributions within the meaning of § 106(3) are publications does not mean that all publications within the meaning of § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in § 106(3).").
187. 471 U.S. 539 (1985).
188. Id. at 552 (emphasis added) (quoting H.R. REP. No. 94-1476, at 62 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5675).
189. See Thomas, 579 F. Supp. 2d at 1220 ("In Harper & Row, the Supreme Court narrowly addressed the issue of first publication. It did not discuss the meaning of the term distribution; nor did it discuss publication or distribution in general.")
190. London-Sire, 542 F. Supp. 2d at 168 ("The Supreme Court stated only that § 106(3) 'recognized for the first time a distinct statutory right of first publication, ' and quoted the legislative history as establishing that § 106(3) gives a copyright holder 'the right to control the first public distribution of an authorized copy. of his work.'" (quoting Harper & Row, 471 U.S. at 552)).
191. 17 U.S.C. § 106 (2006) (emphasis added).
192. Plaintiffs' Supplemental Brief, supra note 72, at 15.
193. Id. at 15-16 (citing dictionary definitions and court decisions defining "authorization").
194. See Frasier v. Adams-Sandier, Inc., 94 F.3d 129, 130 (4th Cir. 1996) ("Section 106 grants the owner of a copyright 'the exclusive rights to do and to authorize' any of five different activities[;]. [b]ecause Frasier does not allege that Adams-Sandier used or authorized the use of his copyrighted photographs, Adams-Sandier cannot be held liable as an infringer.").
195. See, e.g., Venegas-Hernández v. Asociación de Compositores y Editores de Música Latinoamericana, 424 F.3d 50, 57 (1st Cir. 2005) ("Because the right to 'authorize' is literally one of the exclusive rights provided in section 106, the authorizing person could (as a matter of language) be treated as an infringer subject to statutory damages even if no listed infringing act (for example, performance) actually occurred. Yet the legislative origins of the 'authorize' language in the statute arguably support a narrower reading, and most (perhaps all) courts that have considered the question have taken the view that a listed infringing act (beyond authorization) is required for a claim.");
196. Subafilms, Ltd. v. MGM- Pathe Commc'ns Co, 24 F.3d 1088, 1094 (9th Cir. 1994) ("[W]e do not think Congress intended to hold a party liable for merely 'authorizing' conduct that, had the authorizing party chosen to engage in itself, would have resulted in no liability under the Act.");
197. NFL v. PrimeTime 24 Joint Venture, No. 98 Civ. 3778, 1999 WL 163181, at *4 (S.D.N.Y. Mar. 24, 1999) ("In this Court's view, Subafilms is correct insofar as it holds that 17 U.S.C. § 106 does not create an infringeable right of authorization independent of infringement of one of the specific enumerated rights set forth in that section.").
198. See Subafilms, 24 F.3d at 1093 (explaining that '""to authorize" [wa]s simply a convenient peg on which Congress chose to hang the antecedent jurisprudence of third party liability'" (alteration in original) (quoting 3 David Nimmer & Melville B. Nimmer, Nimmer on Copyright § 12.04[A][3][a], at 12-84 n. 81 (1993))).
199. Id. ("Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers." (emphasis omitted) (quoting H.R. REP. No. 94-1476, at 61 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5674)).
200. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1221 (D. Minn. 2008) ("The Court concludes that the authorization clause merely provides a statutory foundation for secondary liability, not a means of expanding the scope of direct infringement liability.").
201. 533 U.S. 483 (2001).
202. Id. at 487.
203. Id. at 506 ("We further conclude that the Print Publishers infringed the Authors' copyrights by authorizing the Electronic Publishers to place the Articles in the Databases and by aiding the Electronic Publishers in that endeavor." (emphasis added)).
204. Thomas, 579 F. Supp. 2d at 1222.
205. Id. at 1222-1223
206. Id. at 1222 ("[T]he Supreme Court was generally discussing the multiple exclusive rights that are violated in the general scenario in which the Print Publisher provides copies of the Articles to the Electronic Publishers, who distribute those copies to the public, who then download the copies themselves.").
207. Plaintiffs' Memorandum in Support of Motion to Certify September 24 Order for Interlocutory Appeal and for Stay of Proceedings Pending Appeal at 7, Capitol Records, Inc. v. Thomas, No.06-1497 (D. Minn. Oct. 14, 2008) ("[T]here are reasonable (and, Plaintiffs believe, dispositive) arguments that the Supreme Court's decision in New York Times Co. v. Tasini, 533 U.S. 483, 488 (2001), concludes that a work is distributed under Section 106(3) when it is made available in a database from which others could download it.").
208. 551 F. Supp. 234 (S.D.N.Y. 2008).
209. See EFF Brief 2, supra note 99, at 3-7. The EFF also argues that Congress specifically chose not to amend § 106(3) when it enacted the Artists' Rights and Theft Prevention (ART) Act of 2005 and the No Electronic Theft (NET) Act. Id. at 6.
210. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (citing Tasini and saying that "[t]he Supreme Court has indicated that in the electronic context, copies may be distributed electronically");
211. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 171 (D. Mass. 2008) (citing Tasini and holding that "[t]he electronic file (or, perhaps more accurately, the appropriate segment of the hard disk) is therefore a 'phonorecord' within the meaning of the statute");
212. Arista Records LLC v. Greubel, 453 F. Supp. 2d 961, 968 (N.D. Tex. 2006) (citing Tasini and stating that "even if the statutory language is arguably ambiguous on this point, the courts have not hesitated to find copyright infringement by distribution in cases of file-sharing or electronic transmission of copyrighted works" before holding that copies may be distributed electronically)
213. see also Part I.B.2.
214. 17 U.S.C. § 106(3) (2006).
215. Id.
216. "Making Available" Transcript From March 28th Fordham Law School IP Law Conference, 28th-fordham-law.html (May 2, 2008, 17:52 EST) (stating that courts "have taken the common-sense position that if the recipient ends up with copies and the recipient got those copies because of a process that was triggered by the defendant, that is a distribution").
217. In addition, Jane Ginsburg's coauthor Jessica Litman has "pointed out that the courts have done quite a job of interpreting the Copyright Act while ignoring the text. So in that case, common sense might prevail." Id.
218. see also Perfect 10, 508 F.3d at 1162 (dealing with the issue of "material object" and "transfer" in one sentence: "The Supreme Court has indicated that in the electronic context, copies may be distributed electronically." (citing New York Times Co. v. Tasini, 533 U.S. 483, 488 (2001))).
219. Amicus Curiae Brief of the Electronic Frontier Foundation in Support of Defendant's Motion to Dismiss the Complaint at 6, Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234 (S.D.N.Y. 2008) (No.05-CV-7340).
220. Id. (quoting S. REP. No. 104-128, at 17 (1995), reprinted in 1995 U.S.C.A.A.N. 357, 364) (citing Reese, supra note 99, at 133).
221. 464 U.S. 417 (1984).
222. Id. at 435.
223. 554 F. Supp. 2d 976, 983 (D. Ariz. 2008) ("The majority of district courts have rejected the recording companies' 'making available' theory because Hotaling is inconsistent with the Copyright Act.").
224. See supra notes 81-84 and accompanying text.
225. See id. ('"Respectfully, Hotaling did not cite any precedent in holding that making copyrighted works available to the public constitutes infringement. [its] interpretation, even if sound public policy, is not grounded in the statute.'" (quoting Barker, 551 F. Supp. 2d at 242-43)).
226. See id. ("noting a 'lacuna in the Fourth Circuit's reasoning' because '[i]t is a "distribution" that the statute plainly requires'" (alteration in original) (quoting London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 168 (D. Mass. 2008)));
227. id. ("declining to apply Hotaling because it is contrary to the weight of authority and 'inconsistent with the text and legislative history of the Copyright Act of 1976"' (quoting In re Napster, 377 F. Supp. 2d 796, 803 (N.D. Cal. 2005))).
228. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1224-1225 (D. Minn. 2008).
229. Id. at 1224.
230. Howell, 554 F. Supp. 2d at 982-83 (citing Interscope Records v. Leadbetter, No. C05-1149-MJP-RSL, 2007 WL 1217705, at *3-4 (W.D. Wa. Apr. 23, 2007))
231. see also Maverick Recording Co. v. Goldshteyn, No. CV-05-4523, 2006 WL 2166870, at *3 (E.D.N.Y. July 31, 2006) ("[T]he 'making available' argument need not be decided here.[S]uch details are rightly the province of the discovery phase and summary judgment.")
232. Howell, 554 F. Supp. 2d at 983 ("To be clear, we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology at this stage." (citing Interscope Records v. Duty, No. 05CV3744-PHX-FJM, 2006 WL 988086, at *3 n.3 (D. Ariz. Apr. 14, 2006)))
233. id. ("[T]he Court is not prepared at this stage of the proceedings to rule out the Plaintiffs' 'making available' theory as a possible ground for imposing liability." (alteration in original) (citing Warner Bros. Records, Inc. v. Payne, No. W-06-CA- 051, 2006 WL 2844415, at *4 (W.D. Tex. July 17, 2006)))
234. rev'd, Atl. Recording Corp. v. Howell, No. CV06-02076-PHX- NVW, 2007 WL 3010792 (D. Ariz. Sept. 27, 2007).
235. Plaintiffs' Proposed Jury Instructions, supra note 125, at 10.
236. Capitol Records, Inc. v. Thomas, No.06-1497, at 2-3 (D. Minn. May 15, 2008) (order requesting briefs as to whether the making-available jury instruction was in error).
237. 239 F.3d 1004 (9th Cir. 2001).
238. Napster, 239 F.3d at 1014.
239. 487 F.3d 701 (9th Cir. 2007).
240. Howell, 2007 WL 2409549, at *3, rev'd, CV06-02076-PHX-NVW, 2007 WL 3010792 (D.Ariz. Sept. 27, 2007) (quoting Perfect 10, 487 F.3d at 718-19).
241. Perfect 10, 487 F.3d at 718-719 ("Hotaling held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works.").
242. Id. at 719 (citing Napster, 239 F.3d at 1011-14).
243. Id.
244. Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976, 982 (D. Ariz. 2008) ("The court cited no precedent and offered no analysis in explanation of that statement. Its review of the issue was cursory because neither party disputed that Napster users were using the system to disseminate actual, unauthorized copies of copyrighted works to the public. The central issue in the case was secondary liability for the creators of the Napster file-sharing system." (citing A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001)).
245. Id (quoting Perfect 10, 487 F.3d at 718).
246. Id.
247. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210 (D. Minn. 2008).
248. See Capitol Records, Inc. v. Thomas, No.06-1497, at 2 (D. Minn. May 15, 2008) (order requesting briefs as to whether the making-available jury instruction was in error) ("[T]he Court is concerned that Jury Instruction No. 15 may have been contrary to binding Eighth Circuit precedent.").
249. Id. (quoting Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 434 (8th Cir. 1993)).
250. See Plaintiffs' Reply Brief Pursuant to May 15, 2008 Order at 8, Thomas, 579 F. Supp. 2d 1210 (No.06-1497).
251. Nat 7 Car Rental, 991 F.2d at 434.
252. See Defendant's Reply Brief, supra note 69, at 19.
253. Thomas, 579 F. Supp. 2d at 1224-1225
254. Id. at 1223 ("[T]he appellate court has, in fact, addressed and rejected the making- available argument.").
255. See Plaintiffs' Proposed Jury Instructions, supra note 125, at 10.
256. 430 F.3d 888 (7th Cir. 2005).
257. Id. at 889 (emphasis added).
258. Id. (explaining that the court's findings of fact included that "[i]t is undisputed, however, that she downloaded more than 1, 370 copyrighted songs").
259. No.03 Civ. 6886, 2005 U.S. Dist. LEXIS 46848 (S.D.N.Y. Feb. 18, 2005).
260. Id. at *3 ("Based on the admissions entered against Defendant and Plaintiffs' submissions, the Court finds it clear that there is no genuine issue of material fact as to Defendant's liability for infringing Plaintiffs' copyrights.").
261. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1215, 1220, 1223 (D. Minn. 2008).
262. Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. Ariz. 2008).
263. Atl. Recording Corp. v. Howell, 2008, Id.
264. 441 F. Supp. 2d 185 (D. Me. 2006).
265. Id. at 190-191 ("[B]y using KaZaA to make copies of the Motion Pictures available to thousands of people over the internet, Defendant violated Plaintiffs' exclusive right to distribute the Motion Pictures.").
266. No. 04-CV-2246, 2007 WL 576284 (E.D. Pa. Feb. 16, 2007).
267. Id. at *3 n.38 (making its determination "based on its reading of the statute, the important decision in A & M Records, Inc. v. Napster, Inc, 239 F.3d 1004 (9th Cir. 2001), and the opinion offered by the Register of Copyrights, Marybeth Peters").
268. No.05-931, 2006 WL 3063493 (D. Or. Oct. 25, 2006).
269. See id. at *2 ("[Plaintiffs' Amended Complaint alleges that defendant used an online media distribution system, among other things, to make the copyrighted recordings available for distribution to others. Additionally, plaintiffs' Amended Complaint refers to 'Exhibit B' attached to the complaint, which allegedly represents music files being shared by user 'perez@KaZaA' at the time plaintiffs' investigator conducted the investigation. Although defendant disagrees that Exhibit B is such a representation, I must construe all allegations in the light most favorable to plaintiffs. I find that Exhibit B, in the context of the allegations in the Complaint, supports plaintiffs' allegation that defendant made copyrighted materials available for distribution."). Note also that this decision was made with very little at stake: the RIAA proposed to dismiss the case without prejudice, while the defendant wanted to dismiss the case with prejudice. See id. at *l-4.
270. No. H-06-3578, 2008 WL 2316551 (S.D. Tex. Mar. 12, 2008).
271. Id. at *8 ("[I]t is self-evident that Defendant's actions in placing Plaintiffs' Copyrighted Recordings in a shared folder accessible to numerous other persons on KaZaA constituted a 'distribution' for the purposes of Plaintiffs' copyright infringement claim against Defendant.").
272. Id. at *7.
273. 534 F. Supp. 2d 278 (D. Conn. 2008).
274. Id. at 281-82 (citing Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007);
275. 4 Patry, supra note 101, § 13:9 & n. 10 (2007)).
276. See, e.g., Venegas-Hernández v. Asociación de Compositores y Editores de Música Latinoamericana, 424 F.3d 50, 57-59 (1st Cir. 2005) (3 pages);
277. Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 981-85 (D. Ariz. 2008) (5 pages);
278. Elektra Entm't Group, Inc. v. Barker, 551 F. Supp. 2d 234, 239-47 (S.D.N.Y. 2008) (7 pages);
279. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 166-75 (D. Mass. 2008) (10 pages);
280. Obolensky v. G.P. Putnam's Sons, 628 F. Supp. 1552, 1555 (S.D.N.Y. 1986) (3 paragraphs).
281. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1210-1228 (D. Minn. 2008).
282. See Plaintiffs' Supplemental Brief, supra note 72, at 26-28.
283. See Professors' Brief, supra note 137, at 9 n.l (noting that the World Intellectual Property Organization (WIPO) treaties, like all intellectual property treaties, are not self- executing in the United States).
284. Defendant's Second Memorandum, supra note 132, at 13 ("All that the Copyright Act does is confer a set of very specific exclusive rights that if infringed permits a remedy of damages, statutory or actual.").
285. See PFF Brief, supra note 136, at 12.
286. Id. at 13.
287. The Parry Copyright Blog, MPAA's Brief and the Charming Betsy, (June 24, 2008, 10:50 EDT).
288. Plaintiffs' Reply Brief, supra note 207, at 9 n.4 ("Mr. Patry's antipathy for the making-available right is well known and may derive from his role as Senior Copyright Counsel to Google, which has litigated this issue against copyright owners.").
289. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1226 (D. Minn. 2008) ("The WIPO treaties are not self-executing and lack any binding legal authority separate from their implementation through the Copyright Act.Therefore, the fact that the WIPO treaties protect a making-available right does not create an enforceable making-available right for Plaintiffs in this Court." (citing 17 U.S.C. § 104(c), (d); Medellin v. Texas, 128 S.Ct. 1346, 1365 (2008); Guaylupo-Moya v. Gonzales, 423 F.3d 121, 137 (2d Cir. 2005)).
290. Id.
291. See Plaintiffs' Supplemental Brief, supra note 72, at 27.
292. Plaintiffs' Reply Brief, supra note 207, at 13 ("The WIPO treaties are relevant because in the course of determining whether existing law satisfied the treaties' requirements, Congress, the President, and other Executive agencies concluded that the Copyright Act does protect the making-available right.").
293. Id. at 27 n.10 (quoting WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105 th Cong. 37 (1997) (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Comm'r of Patents and Trademarks)).
294. Id. (quoting WIPO Copyright Treaty (WCT) (1996) and WIPO Performances and Phonograms Treaty (WWPT) (1996), S. exec. rep. No.105-25, at 29 (1998) (statement of Alan Larson, Assistant Secretary of State)).
295. Id. at 27 (alteration in original) (quoting WIPO Copyright Treaties Implementation And On-Line Copyright Infringement Liability Limitation, H.R. Rep. No.105-551(1), at 9 (1998)).
296. See id. ("Relying on this testimony, Congress implemented the treaties in full.").
297. Great N. Ry. Co. v. United States, 315 U.S. 262, 275 (1942) ("Also pertinent to the construction of the Act is the contemporaneous administrative interpretation placed on it by those charged with its execution.").
298. Plaintiffs' Supplemental Brief, supra note 72, at 27 (quoting WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105th Cong. 43-44 (1997) (statement of Marybeth Peters, Register of Copyrights)).
299. Id. at 27-28 (alteration in original) (quoting WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Marybeth Peters, Register of Copyrights)).
300. Id. at 27-28 (alteration in original) (quoting WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act Hearing on H.R. 2281 and H.R. 2280 Before the Subcomm. on Courts and Intellectual Property of the H. Comm. on the Judiciary, 105th Cong. 43 (1997) (statement of Marybeth Peters, Register of Copyrights)).
301. Id. (citing De Sylva v. Ballentine, 351 U.S. 570, 577-578 (1956)).
302. De Sylva v. Ballentine, 351 U.S. 570, 577-578 (1956).
303. See EFF Brief, supra note 137, at 6 ("The distribution right encompasses only the distribution of certain things ('copies or phonorecords'), to certain people ('the public'), in certain ways ('by sale or other transfer of ownership, or by rental, lease, or lending').").
304. Tim Wu, Tolerated Use: The Copyright Problem, SLATE, Oct. 16, 2007, http://www.slate.com/id/2175730/entry/2175731/
305. Id.
306. Id.
307. Lawrence Lessig, Don 7 Make Kids Online Crooks, U.S. NEWS & WORLD REP., Dec. 22-29, 2008, at 15.
308. Timothy B. Lee, Two Paths for Copyright Law, CATO Institute, June 11, 2008, http://www.cato-unbound.org/2008/06/ll/tim-lee/two-paths-for-copyright- law/ ("[L]egalization of non-commercial filesharing looks less like a radical departure from copyright's past, and more like an incremental adjustment to technological change."). "Mix tapes and libraries of recorded movies may have been technically illegal, but Hollywood and the major labels recognized that they weren't a big enough threat to their bottom line to be worth suing customers over." Id.
309. Id. ("But as the 21st century dawned, technological progress brought this latent ambiguity in copyright law into stark relief. Peer-to-peer filesharing transformed noncommercial home copying from a minor nuisance to an existential threat to the recording industry.").
310. Id.
311. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1228 (D. Minn. 2008) ("Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive."). Presumably Judge Michael J. Davis would be even more alarmed at the retrial verdict of $1, 920, 000. See supra note 142 and accompanying text.
312. See About Creative Commons, www.creativecommons.org/about/what-is-cc (last visited Oct. 19, 2009) ("Creative Commons defines the spectrum of possibilities between full copyright and the public domain. From all rights reserved to no rights reserved. Our licenses help you keep your copyright while allowing certain uses of your work - a 'some rights reserved' copyright.").
313. MGM Studios Inc. v. Grokster, 545 U.S. 913, 929 (2005) (citing Tim Wu, When Code Isn't Law, 89 Va. L. Rev. 679, 724-26 (2003));
314. see also Lessig, supra note 260, at 15 ("[Our kids] get used to being criminal. This fact is deeply corrosive. As with Prohibition, it is profoundly corrupting. And over time, it will only weaken our kids' respect for the law.")
315. See Lessig, supra note 260, at 15 ("A concerted campaign by rights holders, politicians, school administrators, and increasingly parents has convinced kids that their behavior violates the law. But that law breaking continues.").
316. Robert Kasunic, Making Circumstantial Proof of Distribution Available, 18 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 1145 (2008).
317. see also Lessig, supra note 260, at 15 ("[Our kids] get used to being criminal. This fact is deeply corrosive. As with Prohibition, it is profoundly corrupting. And over time, it will only weaken our kids' respect for the law.").
318. See Atl. Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. Ariz. 2008) ("As Hotaling seems to suggest, evidence that a defendant made a copy of a work available to the public might, in conjunction with other circumstantial evidence, support an inference that the copy was likely transferred to a member of the public"). On its own, though, making- available "only shows that the defendant attempted to distribute the copy, and there is no basis for attempt liability in the statute, no matter how desirable such liability may be as a matter of policy." Id. at 984.
319. 542 F. Supp. 2d 153 (D. Mass. 2008).
320. Id. at 177 ("In considering this question, the Court must keep in mind that transfers on a peer-to-peer network are not observable by outside users. To show infringement, the plaintiffs are obliged to build a chain of inferences.").
321. No.00 CIV. 4660(SHS), 2002 WL 1997918 (S.D.N.Y. Aug. 29, 2002).
322. Howell, 554 F. Supp. 2d at 983 (quoting MP3Board, 2002 WL 1997918, at *4).
323. See id. at 984 ("'The majority's decision [in Hotaling] can be saved only if it is read to rest on an evidentiary probability that there had been an actual loan of the copy.'" (quoting Patry, supra note 101, at 13-15)).
324. HKSAR v. Chan Nai Ming, [2005] 4 H.K.L.R.D. 142 (Magistrates' Court).
325. Id. at 151.
326. Id.
327. HKSAR v. Chan Nai Ming, [2007] 1 H.K.L.R.D. 95, 100 (C.F.I.).
328. Id. at 108-109
329. HKSAR v. Chan Nai Ming, [2007] 2 H.K.L.R.D. 489, 501 (C.F.A.) ("[T]he evidence showed that upon being accessed by downloaders seeking to obtain a copy of the relevant film, the appellant's computer reproduced the infringing electronic copy (which remained on his hard disk) in the form of packets of digital information which were sent to the downloaders and reassembled by their computers in the correct sequence to constitute an entire infringing copy of that film. In my view, that process in aggregate is aptly described as involving the appellant's creation of infringing electronic copies (transient or otherwise) of the film and their distribution directly or indirectly to each member of each swarm.")
330. see also id. at 506 (holding that even if no copy was made on the original computer, "[t]he fact would remain that by his use of technology the appellant had caused reproductions of the infringing copies on his computer to appear on the computers of the downloaders, even if the process did not involve the prior creation by his computer of an electronic copy (transient or otherwise)").
331. Id. at 505.
332. See John Borland, Canada Deems P2P Downloading Legal, CNET NEWS, Dec. 12, 2003, ('"As far as computer hard drives are concerned, we say that for the time being, it is still legal, ' said Claude Majeau, secretary general of the Copyright Board.").
333. See Press Release, RIAA, Congressional International Anti-piracy Caucus Releases Priority Country (May 15, 2008), http://www.riaa.com/newsitem.php?id= 7D79DA80-38AB-6667-121C-16FE883BD080.
334. Tom Sanders, Dutch Court Rules Against Law That Allowed File Downloading, PC WORLD, June 27, 2008, http://www.pcworld.idg.com.au/index.php/id
335. 1262747976 ("The Netherlands currently have a unique legal situation where downloading of copyrighted materials is allowed and only uploading is forbidden. The judge now ruled that when the original source is illegal, any copies too should be considered illegal.").
336. Posting of Enigmax to TorrentFreak, http://torrentfreak.com/judge-rules- p2p-legal-sites-to-be-presumed-innocent-090707 (July 7, 2009).
337. See supra notes 261-263 and accompanying text.
338. Universal Music Austl. Pty. Ltd. v Sharman License Holdings Ltd. (2005) 220 A.L.R. 1 (Fed. Ct. Austl.).
339. The Federal Court of Australia held that KaZaa had "authorized" infringement, similar to the "inducement" test in Grokster and that it could have taken steps to control or limit the copyright infringement but chose not to. Id. passim
340. see also Jane Ginsburg & Sam Ricketson, Inducers and Authorisers: A Comparison of the US Supreme Court's Grokster Decision and the Australian Federal Court's KaZaa Ruling, 11 Media & arts L. rev. 1 (2006), http://ssm.com/abstract=888928. Australia's Full Federal Court similarly decided a case dealing with "mp3s4free.net."
341. See Cooper v Universal Music Austl. Pty. Ltd. (2006) 156 F.C.R. 380, 389 (Fed. Ct. Austl.) ("[A] person's power to prevent the doing of an act comprised in a copyright includes the person's power not to facilitate the doing of that act by, for example, making available to the public a technical capacity calculated to lead to the doing of that act. The evidence leads to the inexorable inference that it was the deliberate choice of Mr Cooper to establish and maintain his website in a form which did not give him the power immediately to prevent, or immediately to restrict, internet users from using links on his website to access remote websites for the purpose of copying sound recordings in which copyright subsisted.").
342. See Glenn Peoples, Web Reaction: The Pirate Bay Verdict, BILLBOARD.BIZ, Apr. 17, 2009, http://ww.billbord.biz/bbbiz/content-industry/ e3if46ca983d59bcb8fafadf6defa697d4.
343. Eiseressen/Kazaa B.V., Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands], 19 december 2003, UN AN7253, AMI 2004 1, p. 9 (Neth.), available at http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken= true&searchtype=ljn&ljn=AN7253 &u-ljn=AN7253, translated at http://web.archive.org/web/20070710033653/http://www.solv.nl/rechtspraak-docs/ KaZaA+v.+Buma+Stemra+-+Supreme+Court+19+December+2003.pdf
344. see also Associated Press, Dutch Court Throws out Kazaa Case, WIRED, Dec. 19, 2003, http://www.wired.com/entertainment/music/news/2003/12/61672.
345. See Posting of Jon Healey to Bit Player, http://opinion.latimes.com/ bitplayer/2008/06/so-1999-music-c.html (June 5, 2008).
346. See, e.g., Draeke Weseman, Future Shock and the Copyright Act of 1976: Is Merely Making a Copyrighted Work Available for Digital Transmission a Violation of § 106(3)?, at 25 (2008), available at http://www.wired.com/images- blogs/threatlevel/files/future-shock-making-available.pdf ("Congress needs to revisit the Copyright Act of 1976 to address the digital distribution capabilities of the Internet.").
347. See Defendant's Reply Brief, supra note 69, at 2.
348. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 431 (1984) (explaining that courts have shown "consistent deference to Congress when major technological innovations alter the market for copyrighted materials").
349. Bill C-61, 2008, 2d Sess., 39th Parl. (Can.), available at http://www2.parl.gc.ca/content/hoc/Bills/392/Government/C-61/C-61-l/C-61-l.PDF.
350. Id. § 7(l.l)(d)
351. see also id. § 9(l.l)(a) ("[T]o communicate it to the public by telecommunication in a way that allows a member of the public to access it from a place and at a time individually chosen by that member of the public").
352. See Aymeric Pichevin, French Assembly Adopts Anti-piracy Bill, BlLLBOARD.BIZ, Sept. 15, 2009, http/www.billboard.biz/bbbiz/content-display/ industry/e3ibe685bl031a7a6fcc69386c2b5bc7ef9
353. see also Trois Strikes and You're Out, Economist, Apr. 18, 2009, at 72;
354. Charles Bremner, Download Pirates Face Being Banned from the Internet Under Sarkozy Law, TIMES (London), June 19, 2008, at 39, http://technology. timesonline.co.uk/tol/news/tech-and-web/article4165519.ece.
355. Jacqui Cheng, French "3 Strikes" Law Returns, Now with Judicial Oversight!, ARS TECHNICA, July 10, 2009, http://arstechnica.com/tech-policy/ news/2009/07/its-baack-french-3-strikes-law-gets-another-go-from-senate.ars.
356. Id.
357. See Pichevin, supra note 299 and accompanying text.
358. French Pirates Face Net Cut-Off, BBC NEWS, Nov. 3, 2008,. The European Union was scheduled to consider a report that suggested such a "graduated response" plan, however. Posting of Ernesto to TorrentFreak, clampdown-090201/ (Feb. 1, 2009).
359. Trois Strikes and You 're Out, supra note 299
360. Jacqui Cheng, Germany Says "Nein " to Three-Strikes Infringement Plan, Ars Technica, Feb. 6, 2009, http://arsteclmica.com/tech- policy/news/2009/02/germany-walks-away-from-triree-strikes-internet-policy.ars.
361. Howell Llewellyn, 'Three-Strikes' off Anti-piracy Agenda in Spain, BlLLBOARD.BIZ, June 22, 2009, http://www.billboard.biz/bbbiz/content-display/ industry/e3i8071e0d9c25cb6b876d3771fb7e3dl02.
362. See Posting of Enigmax to TorrentFreak, http://torrentfreak.com/danish- isps-reject-anti-piracy-proposals-080917 (Sept. 17, 2008).
363. See Andrew Orlowski, Legal, British P2P 'By End of Year,' REG, June 26, 2008, http://www.theregister.co.uk/2008/06/26/music-service-provider-talks/.
364. See BPI, http.//www.bpi.co.uk/category/about-us.aspx (last visited Oct. 19, 2009) ("The BPI [formerly known as British Phonographic Industry] is the representative voice of the UK recorded music business.").
365. Robert Ashton, BPI Strikes Deal with ISPs To Reduce Filesharing, MUSICWEEK, July 24, 2008, http://www.musicweek.com/story.asp?sectioncode= l&storycode=1034936.
366. Id.
367. Robert Ashton, ISPs Start Sending Warning Letters, MUSICWEEK, Oct. 2, 2008, http://www.musicweek.com/story.asp?sectioncode=l&storycode=1035706 (quoting language from earlier warning letters that said the following: "We're writing to you about downloading and sharing of copyrighted files on the internet. That's because we've received a report that copyrighted music has been shared using a computer linked to your Virgin Media Internet account." (internal quotation marks omitted))
368. see also Chris Williams, BT Starts Threatening Music Downloaders with Internet Cut-Off, REG., June 26, 2008, http://www.theregister.co.uk/2008/06/26/ bt-bpi-letter/print.html (quoting a warning letter from BPI forwarded to an individual by a British ISP that said the following: "The sound recordings in that directory have then been made available to other members of the public via your internet connection. This is an infringement of the copyright in those sound recordings.").
369. Richard Wray, Internet Pirates Beware: This Man Is Out To Stop You, OBSERVER (London), Apr. 26, 2009, Business at 9, available at http://www.guardian.co.uk/media/2009/apr/26/david-lammy-illegal-downloads-piracy
370. Associated Press, U.K. Mulls Cutting Pirates' Web Access, WALL ST. J., Aug. 26, 2009, at B5
371. Nate Anderson, UK Caves to Big Content, Backs 'Net Cutoffs for P2P Use, Ars Technica, Aug. 25, 2009, http://arstechnica.com/tech-policy/news/2009/08/uk- caves-to-big-content-supports-net-cutoffs-for-p2p-use.ars.
372. Eric Pfanner, A Fix for Music Piracy: Tack a Fee on Broadband, N.Y. TIMES, Jan. 26, 2009, at B4.
373. Id.
374. Andre Paine, Major Labels Sue Irish ISPs, BILLBOARD.BLZ, June 23, 2009, http://www.billboard.biz/bbbiz/content-display/industry/ e3i4bd3d37ca0da05dc91c93065eba16a94.
375. Posting of David Kravets to Wired Threat Level Blog, ISP Agrees To Ban Copyright Scofflaws, http://www.wired.com/threatlevel/2009/01/isp-agrees-to-b/ (Jan. 29, 2009, 11:56 EST).
376. See supra note 260 and accompanying text.
377. Jan Libbenga, Sweden Judges Back Pirate Hunter Act, REG, Nov. 14, 2008, http://www.theregister.co.uk/2008/ll/14/sweden-closer-to-antipiracy-law/. Similarly, Norway's Minister of Education has voiced opposition to tactics fighting filesharing.
378. Jacqui Cheng, Norway Education Minister: There's No Future in Fighting P2P, ARS TECHNICA, Feb. 24, 2009, http://arstechnica.com/tech-policy/news/2009/ 02/norway-education-minister-theres-no-future-in-fighting-p2p.ars.
379. Libbenga, supra note 319
380. Sweden Passes Anti-P2P, Anti-fdeshare Law, P2PNET, Feb. 26, 2009, http://www.p2pnet.net/story/18636.
381. See Case C-275/06, Productores de Música de España (Promusicae) v. Telefónica de España SAU, 2008 E.C.R. 1-00271, available at lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006J0275:EN:NOT
382. EU: ECJ Renders Judgment in Promusicae Case, Eur. Privacy & E-Com. Alert (Hunton & Williams, Brussels, Belg.), Apr. 2008, at 1, available at http://www.hunton.com/files/tbl-slONews/FileUpload44/15171/EU-Commerce-Alert- April -2008.pdf (stating that the law "must strike a fair balance between the fundamental rights that they protect, and must respect general principles of Community law, such as the principle of proportionality").
383. John Ferguson, New Zealand Govt Revives Anti-piracy Law, BILLBOARD.BIZ, July 14, 2009, http://www.billboard.biz/bbbiz/content-display/industry/ e3ia62deb261008854a5blcb008385467b6.
384. Id.
385. Ben Grubb, Conroy Vows To Tackle Illegal File Sharing, Itnews, July 15, 2009, http://www.itnews.com.au/News/150133,conroy-vows-to-tackle-illegal-file- sharing.aspx.
386. Asher Moses, Labor Plan To Censor Internet in Shreds, AGE, Dec. 9, 2008, http://www.theage.com.au/news/home/technology/labor-plan-to-censor-internet-in- shreds/2008/12/09/1228584820006.html.
387. Kim Tong-Hyung, Upload a Song, Lose Your Internet Connection, KOREA TIMES, Apr. 5, 2009, http://www.koreatimes.co.kr/www/news/tech/2009/04/133- 42594.html.
388. Id.
389. Thibault Worth, Taiwan Passes Three-Strikes Piracy Law, Billboard.BIZ, Apr. 27, 2009, http://www.billboard.biz/bbbiz/content-display/industry/-display/ industry/e3ib20649ac4d6059c2acd520f678899fad.
390. Nate Anderson, ACTA Draft Leaks: Nonprofit P2P Faces Criminal Penalties, ARS TECHNICA, Feb. 4, 2009, http://arstechnica.com/tech-policy/news/2009/02/ actual-acta-draft- leaks-noncommercial-p2p-could-get-criminal-penalties.ars.
391. Id.
392. See McBride & Smith, supra note 54.
393. Id. ("Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.")- Ray Beckerman, a prominent attorney for individual defendants against the RIAA, asked "what was the legal basis for the NYS Attorney General involvement in this coordinated agreement among 4 competitors, and 2 separate industries?" Recording Industry vs The People, http:// recordingindustryvspeople.blogspot.com/2009-01-01-archive. html#929883912691581798 (Jan. 1, 2009, 09:53 EST).
394. See Greg Sandoval, Copy of RIAA's New Enforcement Notice to ISPs, CNET NEWS, Dec. 19, 2008, http://news.cnet.com/8301-1023-3-10127050-93.html ("We believe a user on your network is offering an infringing sound recording for download through a peer to peer application.").
395. See Posting of David Kravets to Wired Threat Level Blog, (Dec. 22, 2008, 14:19 EST).
396. Greg Sandoval, One ISP Says RIAA Must Pay for Piracy Protection, CNET News, Dec. 22, 2008,http://news.cnet.com/8301-1023-3-10127841-93.html.
397. See Alex Goldman, Top 23 U.S. ISPs by Subscriber: Q3 2008, ISP-PLANET, Dec. 2, 2008, http://www.isp-planet.com/research/rankings/usa.html.
398. Nate Anderson, RIAA Graduated Response Plan: Q&A with Cary Sherman, ARS TECHNTCA, Dec. 21, 2008, response-plan-qa-with-cary-sherrnan.html
399. see also Any There There? RIAA Agreements Remain Flimsy, Unconfirmed..., DIGITAL MUSIC NEWS, Jan. 4, 2009, (explaining that "one of the largest ISPs, Verizon, told Digital Music News that a sweeping, stepped-up agreement with the RIAA simply does not exist, " but that "AOL, Comcast, and Charter Communications representatives indicated that accounts will be terminated if copyrighted materials are shared over their networks");
400. Posting of David Kravets to Wired Threat Level Blog, (Jan. 5, 2009, 11:43 EST) (investigating whether any ISPs had agreed to the plan, but unable to find any ISPs that would admit having agreed to the plan).
401. See Goldman, supra note 337.
402. Greg Sandoval, AT&T Exec: ISP Will Never Terminate Service on RIAA's Word, CNET NEWS, Mar. 25, 2009, http://news.cnet.com/8301-1023-3-10204514-93. html.
403. See Goldman, supra note 337.
404. ComcastBonnie, This Is Our Official Statement about the RIAA Stuff!, TwrTPIC, Mar. 26, 2009, http://twitpic.com/2gq3y.
405. See Any There There? RIAA Agreements Remain Flimsy, Unconfirmed..., supra note 338 ("[T]his is part of an admitted work-in-progress by the RIAA, and any hope of ISP unanimity is probably too elusive to be true.").
406. See supra note 32 and accompanying text.
407. See supra note 34 and accompanying text.
408. See supra note 64 and accompanying text; supra Part II.D.5.
409. See supra notes 334-335 and accompanying text.
410. See supra Part I.B.I.
411. See supra notes 74-75 and accompanying text.
412. See supra notes 71, 121-123 and accompanying text.
413. See supra note 146 and accompanying text.
414. See supra note 146 and accompanying text.
415. See supra Part II.D.2.
416. See supra notes 82-88 and accompanying text.
417. See supra notes 95-96 and accompanying text.
418. See supra Part II.A. 1.
419. See supra notes 150-151 and accompanying text.
420. See supra notes 155-157 and accompanying text.
421. See supra notes 174-175 and accompanying text.
422. See supra notes 176-180 and accompanying text.
423. See supra Part II.A.2.
424. See supra note 158 and accompanying text.
425. See supra notes 162-165 and accompanying text.
426. See supra note 168 and accompanying text.
427. See supra notes 170-71 and accompanying text.
428. See supra note 219 and accompanying text.
429. See supra note 80 and accompanying text.
430. See supra notes 81-84 and accompanying text.
431. See supra Part II.B.l.
432. See supra Part II.B.2.
433. See supra Part II.B.3.
434. See supra notes 209-211 and accompanying text.
435. See supra Part II.B.4.
436. See supra note 222 and accompanying text.
437. See supra note 111 and accompanying text.
438. See supra notes 132-137 and accompanying text.
439. See supra note 233 and accompanying text.
440. See supra note 244 and accompanying text.
441. See supra notes 235-236, 242 and accompanying text.
442. See supra note 244 and accompanying text.
443. See supra Part II.C.2.
444. See supra note 246 and accompanying text (emphasis added).
445. See supra note 236 and accompanying text.
446. See supra note 247 and accompanying text.
447. See supra note 251 and accompanying text.
448. See supra note 248 and accompanying text.
449. See supra note 253 and accompanying text.
450. See supra note 255 and accompanying text.
451. See supra notes 277-283 and accompanying text.
452. See supra note 51 and accompanying text.
453. See supra notes 294-295 and accompanying text.
454. See supra notes 297-298 and accompanying text.
455. See supra note 299 and accompanying text.
456. See supra Part II.D.5.
457. See supra notes 334-35 and accompanying text.
458. See supra notes 334-35 and accompanying text. 3 96. See supra notes 336-343 and accompanying text.
459. See supra note 119 and accompanying text.
460. See supra note 61 and accompanying text.
461. See supra notes 12-17 and accompanying text.
462. See supra note 260 and accompanying text.
463. See supra Part II.D.l.
464. 129 S. Ct. 2079, 2089 (2009).
465. 532 U.S. 162(2001).
466. 129 S. Ct. 2079.
467. U.S. Const, amend. VI.