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Is the RIAA’s “Making Available” Argument Still Valid?

611 songs. That's how many of the music files Denise Barker had downloaded, using Kazaa, that the Recording Industry Association of America (RIAA) used to sue Barker for copyright infringement.

The normal amount that the RIAA seeks, per infringing song, varies from $750 to $3,000. In most cases, the issue is settled out of court and kept out of the public record, but Denise Barker chose to file a defense and take her case to court.

In her response to the RIAA's initial claim, Barker and her lawyers countered that the RIAA's "average" amount per song was unconstitutional. Her defense letter countered the $750 to $3,000 per song with a more modest sum of $3.50 per song, which would have yielded the RIAA with roughly $2,140.00 total. The letter noted that the RIAA's proposed price per infringing song would be "2,142 to 428,571 times the actual damages."

"Recovery should be limited to $3.50 per recording," Barker's initial defense letter read, "as against a single noncommercial user for a single upload or download of an MP3 file for personal use."

In the end, Barker settled the case out of court, which means the unconstitutionality claim will need to wait for another court case. In the settlement, the following payment structure of $9.90 per infringing song was used:

"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."

"Innocent Infringement"
Interestingly, Barker had admitted in her response to the RIAA's initial claim that she has used Kazaa, but argued that her ignorance of what the program did, in terms of making her hard drive's content available to others.

"Innocent infringement," her response noted. "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."

Compare this lower settlement amount to the case of Capitol Records v. Jammie Thomas. In the first file-sharing case to go to court, Thomas was convicted of downloading 24 songs. The prosecution never produced a hard drive with either the Kazaa software or any infringing songs, but a jury awarded $222,000 to the record company, in part due to the "making available" argument.

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