RIAA settles for $6K in Elektra v. Barker

The RIAA has settled (PDF) for a mere $6,000 in the case of Elektra v Barker. The RIAA had sought maximum statutory penalities for each of a long list of files found in the defendant's "shared" folder. So this is a come-down from many tens of thousands of dollars (recall the verdict in Thomas was over $200,000) to $6K, probably not much more than they originally offered her to settle. The case was a leading repudiation of the RIAA's "making available" theory, in which they asserted that the mere presence of files in a defendant's "shared" folder constitutes distribution under the Copyright Act.

In Barker, the judge rejected the "making available" claim but allowed the RIAA's case to go forward to prove actual distribution of the files.

But the case was not a slam-dunk for RIAA defendants, as Ray Beckerman relates in a recent paper:

The Court also suggested a different theory -- one not hitherto suggested by the RIAA lawyers or by the evidence -- that the plaintiffs might use, of "offering to distribute for purposes of further distribution", and gave them leave to replead if they chose to do so. The decision is completely silent as to what plaintiffs would have to prove in order to establish such an "offer". In the opinion of William Patry, author of the Patry on Copyright treatise, (and in the opinion of the undersigned), Judge Karas erred in equating "publication" with "distribution". It appeared to the undersigned that Judge Karas erred in delving into the legislative history of the 1976 Act in order to determine what a distribution is, while the statute -- 17 USC 106(3) -- is unambiguous and required no such analysis.