The recording industry's litigation campaign against individual file-sharers suffered a setback earlier this month when a federal judge ruled in Atlantic v. Brennan that the boilerplate complaint used by the recording industry in these cases would not support a default judgment. Ars Technica has an excellent summary of the legal standards and why the ruling represents a blow to the "spam-igation" techniques of the recording industry.
Default judgments may be entered against defendants who never respond to a lawsuit, but only if the complaint lives up to certain minimum standards. In ruling that the recording industry's complaint fell short of this mark, the judge specifically rejected the recording industry's "making available" arguments (and thereby endorsing the argument that EFF recently made in Atlantic v. Howell):
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); see also id. n.10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (affirming the district court’s finding “that distribution requires an ‘actual dissemination’ of a copy”).
It remains to be seen whether the recording industry has the particularized evidence necessary to back up their boilerplate complaints. But this ruling suggests that courts are not prepared to simply award default judgments worth tens of thousands of dollars against individuals based on a piece of paper backed by no evidence.