There have been seven fully briefed challenges to the sufficiency of the boilerplate complaint in the form of motions to dismiss complaint, 3 in Texas, 1 in Minnesota, 1 in Arizona, and 3 in New York; my firm handled the 3 New York motions. A new dismissal motion has been made in Elektra v. Dennis in Jackson, Mississippi.

In Elektra v. Santangelo, in Westchester, the motion was denied.

An unusal result occurred in Interscope v. Duty, in Arizona. The judge denied the defendant's dismissal motion, not because he agreed with the RIAA, but because he didn't feel he understood the technology well enough to rule on the case.

Then, in Waco, Texas, in Warner v. Payne, in Fonovisa v. Alvarez in Abilene, Texas, and in Maverick v. Goldshteyn in Brooklyn, New York, the judges followed the Interscope decision, declining to decide whether 'making available' is a copyright infringement, and upheld the complaint. The motion was also denied in Arista v. Greubel, in Fort Worth, Texas.

In Elektra v. Barker in Manhattan, the motion is pending, and the RIAA has cited to the judge their victories in the other six (6) cases. In Barker, however, unlike in other cases, amicus curiae briefs have been submitted by the Electronic Frontier Foundation (EFF), the Computer & Communications Industry Association, and the Internet Industry Association, in support of Ms. Barker's motion, and by the MPAA in opposition to it. Additionally the American Association of Publishers requested permission to file such a brief, and the United States Department of Justice submitted a "Statement of Interest" taking issue with an argument made by the EFF. Briefing was completed in the spring of 2006, and oral argument was held by Judge Kenneth M. Karas on January 26, 2007. The parties are now awaiting the Court's decision. Judge Karas indicated that he will not "punt" on the "making available" argument, but will decide its validity. A transcript of the oral argument in Barker is available online.

The Department of Justice also submitted a "Statement of Interest" in Fonovisa, also on the side of the RIAA, relating to the same limited issue.

A new dismissal motion may be made in Westchester, in Warner v. Cassin, depending on the outcome of the motion in Elektra v. Barker.

In Elektra v. Perez, 2006 WL 3063493, in Oregon, a case which wasn't on our radar until we tripped across the October, 2006, decision on Westlaw, the judge denied a motion to dismiss, and appears to have resolved the "making available" argument in the RIAA's favor, but the procedural context was unusual: it was in response to the RIAA's motion to dismiss its own case. The court in Motown v. DePietro, in a footnote, likewise ruled that "making available" is actionable, but DePietro is a pro se case, and a reading of the footnote -- which relies on dictum from the 2001 Ninth Circuit decision in Napster -- suggests that the issue was not fully briefed to the Judge.


*Reprinted with permission of Ray Beckerman from http://info.riaalawsuits.us/howriaa.html updated March 31, 2007.