RIAA law strategy may be undercut

The case of Warner v Cassin will challenge the basic premise of the Recording Industry Association of America's lawsuits against users of P2P systems -- that the existence of copyrighted music in a user's share folder is equivalent to infringing activity, Ars Technica notes.The case is scheduled for conference Sept.

The case of Warner v Cassin will challenge the basic premise of the Recording Industry Association of America's lawsuits against users of P2P systems -- that the existence of copyrighted music in a user's share folder is equivalent to infringing activity, Ars Technica notes.

The case is scheduled for conference Sept. 14, the Recording Industry v. People blog notes. This is the second case to challenge the RIAA's fundamental theory. A case not yet decided, Elektra v Barker, also centered on the issue.

In Cassin, the RIAA responded to a motion to dismiss by citing section 106 of the copyright law, which states: "The owner of the copyright ... has the exclusive rights to ... (3) distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending."

The RIAA asserts that having a file in your LimeWire public folder is the same as distributing it. The defendants argue that the RIAA must show actual infringement -- that is, actual distribution, not just the potential for distribution. Ars notes:

First, the RIAA's complaints do not allege any actual acts of infringement, which the Copyright Act says must take place in order for a case for infringement to be made. The only downloading that the RIAA can actually prove occurred was done by its authorized agent, MediaSentry. Since the RIAA cannot demonstrate that someone other than MediaSentry downloaded the file—or that the defendant ever illegally downloaded any of the tracks in the shared folder—it therefore cannot show that infringement actually took place. Looking at it from another angle, there are no allegations that the defendants actually engaged in a specific act of distribution at any point in time—which is why the RIAA's boilerplate complaints refer to "ongoing" and "continuous" infringement.

The stakes are big. If the Barker or Cassin courts find against the RIAA, it becomes much more difficult for the group to assert infringement claims.

The labels would have to show actual evidence that someone downloaded a file from a targeted P2P user instead of just offering a few screenshots and a report from MediaSentry along with a boilerplate complaint.