The US case law. Atlantic Recording Corp. v. Brennan, 2007 U.S. Dist. LEXIS 96276 (D. Conn. 2007).
At least one aspect of Plaintiffs’ distribution claim is problematic, however, namely the allegation of infringement based on “mak[ing] the Copyrighted Recordings available for distribution to others.” (Compl. 13.) This amounts to a valid ground on which to mount a defense, for “without actual distribution of copies… there is no violation [of] the distribution right.” 4 William F. Patry, Patry on Copyright § 13:9 (2007)
Judge Janet Bond Arterton presents further very interesting conclusions. I guess, it is even more important, if you look at the whole P2P end-users suits’ issue.
In other similar cases brought by these Plaintiffs and other record labels, individual defendants have raised a host of colorable defenses; but due to the varying procedural postures, the viability of these defenses has largely yet to be conclusively determined. The defenses which have possible merit include: (1) whether the amount of statutory damages available under the Copyright Act, measured against the actual money damages suffered, is unconstitutionally excessive, see UMG Recordings, Inc. v. Lindor, No. 05-1095, 2006 WL 3335048, at 3 (E.D.N.Y. 2006) (finding the defense non-frivolous); Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 588 (6th Cir. 2007) (rejecting the defense as to a 44:1 damages ratio); see generally Blaine Evanson, Due Process in Statutory Damages, 3 Geo. J. L. & Pub. Pol’y 601, 637 (2005);2 and (2) whether the Plaintiffs and their recording industry peers, by bringing infringement suits like this one, have engaged in anticompetitive behavior constituting copyright misuse, see Lava Records LLC v. Amurao, No. 07-321 (S.D.N.Y. Jan. 16, 2007) (motion to dismiss copyright misuse counterclaim pending); Assessment Techs. of WI, LLC, v. WIREdata, Inc., 350 F.3d 640, 647 (7th Cir. 2003) (“The doctrine of misuse prevents copyright holders from leveraging their limited monopoly to allow them control of areas outside the monopoly.”).
What do we have in the Polish law with regard to the aforementioned problem? The Polish Act on Authors Rights and Neighbouring Rights – ARNR – (in Polish: ustawa o prawie autorskim i prawach pokrewnych) of 4 February 1994, published in Journal of Laws (Dziennik Ustaw) No 24, item 83, consolidated text of 16 May 2006, Journal of Laws (Dziennik Ustaw) No 90, item 631 with later amendments.
Article 116.
1. Any person who, without authorization or without respecting the conditions imposed, discloses another’s work in its original or in a derived form, or a performance, a phonogram or videogram or a broadcast shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement commits the acts specified in paragraph 1 with a view to deriving a material profit therefrom, he shall be liable to a term of imprisonment of up to three years.
3. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of six months to five years.
4. If the perpetrator of the infringement defined in paragraph 1 acts unintentionally, he shall be liable to a term of imprisonment of up to one year, restriction of freedom or a fine.
Article 117.
1. Any person who, without authorization or without respecting the conditions imposed, fixes or reproduces another’s work in its original version or in a derived form, or a performance, a phonogram or videogram or a broadcast, at the same time authorizing the disclosure thereof, shall be liable to a term of imprisonment of up to two years, restriction of freedom or a fine.
2. If the perpetrator of the infringement defined in paragraph 1 has made the infringement into a permanent source of income, or if he organizes or directs the offending activity referred to in paragraph 1, he shall be liable to a term of imprisonment of up to three years.