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Elektra vs. Barker P2P Case Settled
August 18, 2008
Thomas Mennecke
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First, the bad news. Denise Barker, like many file-sharers before here, shared music with the Kazaa P2P program and was caught doing so. Unfortunately for Denise, the agents of the music industry discovered her rather copious shared folder of 611 songs. Like many file-sharers, a few downloads of this work by the RIAA’s agents led to the inevitable monetary demand from the music industry.

At this point, however, the Elektra vs. Barker case began to diverge from the commonality of all other cases. Instead of folding up and giving in to the monetary demand, Barker decided to fight back, and this immediately separated her from the rest of the pack. The Barker case also features the “making available” theory. This theory claims that merely having copyrighted work in a shared folder is equal to copyright infringement. Quite simply, the plaintiffs claim that if such work exists in a public folder, the intention is there to distribute that work without the owner’s permission. Defendants have countered this claim by saying that a shared folder is no different than a public library, which has an entire inventory of protected works.

All too often, suspected P2P pirates simply give in to the music industry's monetary demand, which is typically in the $3,000 range. Considering the multi-hundred thousand, or even multi-million dollar alternative, shelling out $3,000 is the more viable option to many.

This mindset is what the music industry is hoping for from most people. Jammie Thomas, the Minnesota file-sharer who contested the music industry's copyright claim, lost a rather expensive gamble. Although she claims to have never used a file-sharing application, Jamie Thomas was ultimately found liable for copyright infringement and was ordered to pay $220,000 to the plaintiffs. That's $9,250 for each of the 24 songs the music industry confronted her on. The case is currently being appealed.

Fast forwarding to Denise Barker, her defense took a more novel approach. Instead of flat out denying the allegations, she admitted that she used Kazaa, but with mitigating circumstances. Her defense stated that the monetary demands per song are unconstitutional, and that "2,142 to 428,571 times the actual damages" would lead to an outrageous number. The defense countered with a $3.50 offer per infringing song. Perhaps most interestingly, the defense offered the following defense:

"Innocent infringement : defendant was not aware of any copyright infringement, and upon information and belief some or all of the copies which she downloaded did not bear copyright notice."

Ignorance of the law has often been scoffed at by the courts, but considering the digital climate and unresolved nature of copyright law online, it's not so farfetched to believe she honestly didn't understand the consequences of her actions. The judge overseeing the case did not reject her defense, and instead offered the following ruling on Friday:

“Defendant shall pay to Plaintiffs in settlement of this action the sum of $6050.00, paid in fifty-five (55) equal monthly payments of $110 due on or before the 24th day of each month, with the first payment due on or before August 24, 2008 and the last such payment on or before February 24, 2013.”

As part of the settlement, the judge ordered Barker to refrain from sharing copyrighted work and to delete any infringing files. This case portrays a stark difference between Tenise Barker and Jammie Thomas, two very similar cases with very different results. Because the case was settled, there remains no definitive ruling on the theory of “making available”. However, P2P defendants now have more viable defense options.


This story is filed in these Slyck News categories
Legal/Courtroom :: Individual Lawsuits

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