Amicus Brief: Capitol et al v. Noor Alaujan
May 23, 2004
Introduction and Summary of Argument
The ultimate purpose of U.S. Copyright law is to foster the growth of learning and culture for the public welfare. U.S. Const., art. I, sec. 8, cl. 8. The U.S. Copyright Act, 17 U.S.C. § 107-1332, aims to achieve this goal by providing incentives for authors to create new work by giving them limited monopoly rights in the products of their creativity. 17 U.S.C. § 106. In a manner designed to promote the greatest public access to the products of creativity, the law balances these property rights with certain limitations and requirements. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
The Plaintiffs in this action are music recording companies that have filed copyright infringement suits against individual consumers. Plaintiffs alleged that these individuals have engaged in unauthorized file-sharing activities, thereby infringing upon the Plaintiffs’ exclusive rights of reproduction and distribution. See, e.g., Plaintiffs' Complaint for Copyright Infringement, Noor Alaujan, ("Pls.’ Compl.").
We recognize that in many instances it is likely that similarly positioned defendants have indeed violated one or more of the exclusive rights of the copyright holders, and in such situations the most appropriate disposition for the parties may be to settle these claims expeditiously.However, we focus this brief on the several unresolved factual and legal issues in these cases which may be relevant in some, though likely not all, of the joined actions at issue here.
As a threshold matter, we note that the claims aggregated in a single paragraph of the Complaint require a more complex analysis by which two distinct actions—copying (downloading) and making works available to third parties for further reproduction (uploading)—may each be the basis of infringement of two distinct copyrights—the right to reproduce and the right to distribute. It is important to recognize that particular factual circumstances or defenses that may excuse or reduce liability for downloading may be inapplicable to activity involving uploading and vice versa. As well, conduct that does not infringe the Plaintiffs’ rights of reproduction may well infringe their rights of public distribution.
The major challenge for Plaintiffs in this case is one of proof. The exhibits presented at this point do little to indicate whether copyrighted material was actually copied or distributed in any particular case, or if the Plaintiffs have correctly identified the Defendants in every instance.
As to downloading, some Defendants may have claims under the exception of fair use, especially in light of the unsettled areas of substantive law around the meaning of and impact on the “market.” For example, an argument might be made, although it is not a compelling one, that downloading for sampling of potential purchases can be a noncommercial fair use. The Court may wish to permit Defendants to present such fair use defenses. However, other factors in the fair use analysis may not favor Defendants; therefore any decision to allow evidence on these points must be weighed against the efficiencies produced by joinder.
Fair use arguments in regard to uploading are weak. The dominant legal question (and strongest substantive argument for Defendants) in regard to this type of activity is whether simply placing works in a location that is accessible by others is sufficient to constitute an infringement of the Plaintiffs' rights of public distribution.
Lastly, the difficulty in disabling the uploading function of the filesharingsoftware may support a finding of innocent intent in regard to thedistribution claims which could justify a reduced damage award, although itis unlikely to affect liability itself.Given the potential for variation of factual and legal issues among thevarious Defendants, the Court may wish to reconsider whether these casesare properly joined. In the alternative event that the parties involved pursuea course of settlement, the Court may wish to play an active role in thisprocess, imposing reasonable parameters on the amount of the settlements.