A federal judge in Connecticut has rejected the RIAA's "making available" theory
, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion
(pdf), Judge Janet Bond Arterton held that the RIAA needs to prove "actual distribution of copies", and cannot rely -- as it was permitted to do in Capitol v. Thomas
-- upon the mere fact that there are song files on the defendant's computer and that they were "available". This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker
and Warner v. Cassin
. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory
and possible copyright misuse
flowing from the record companies' anticompetitive behavior.