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Posted by Fred von Lohmann

Same day, two federal courts, two different rulings on "making available."

As we mentioned yesterday, a New York court in Elektra v. Barker gave a boost to the recording industry by ruling that an offer to distribute a file on a P2P network can infringe the distribution right, even if no one ever actually downloaded it from you. Well, on the same day, a Massachusetts court in London-Sire v. Doe ruled just the opposite, holding that "merely exposing music files to the internet is not copyright infringement" (we just received the ruling today).

EFF filed an amicus brief in this case (formerly known as Atlantic v. Does 1-21), and our arguments appear to have found a more receptive audience in Boston that they did in New York City (the judge thanks us for our participation on page 11). The 52-page ruling is the most extensive analysis yet of the recording industry's "making available" argument, which claims that you infringe copyright merely by having a song in your shared folder, even if no one ever downloads it.

As we discussed yesterday, a key issue is whether a mere "offer to distribute" is enough to infringe the distribution right, in light of the fact that a mere offer can be enough to constitute "publication." Unlike the court in Elektra v. Barker, the judge in London-Sire v. Doe concludes that "distribution" and "publication" are not identical -- "even a cursory examination of the statute suggests that the terms are not synonymous." If you are interested in the details, the court's analysis is highly illuminating (p. 24-27), touching on a number of earlier rulings, such as Hotaling v. Church of Jesus Christ of Letter-Day Saints and A&M v. Napster (copyright nerds will recognize those as pivotal decisions in this area).

While this is an important victory, the decision may not change much for most individuals targeted for RIAA lawsuits. The judge concludes that evidence of an "offer to distribute" is enough to permit a lawsuit to move forward, even if it's not enough to decide the matter. That means that the RIAA will keep filing lawsuits based on the investigations of MediaSentry. Moreover, the court rejected EFF's argument that the distribution right does not reach digital networks at all.

In light of the disagreement between these two rulings, it's likely that these issues are headed for more consideration by other courts. But we're grateful that these judges (in both Elektra and London-Sire) are doing a thorough job considering these important questions, instead of just taking the RIAA's word on what the law is.

It's nice to see, but I'm wondering if the judges are just trying to appease those of us who complain loudly by calling them. You know, do this in view, do this behind closed doors, make everyone happy...

Anyone know that this isn't whats going on? And does anyone have any new information on MediaSentry? A few pals and I have a bet going, I have a though ton what they are doing as my pals do, and we want to see just how unscrupulous this company and it's detective work really is. So if anybody knows of a url, we'd appreciate it, greatly.

They quashed the RIAA subpoena!

After reading the entire 52-page ruling, this judge seems to completely understand what's going on.

She says "making available" is not distribution unless someone takes a copy and, noting that MediaSentry does not count because they are working for copyright owners and, as a result, any copies they make are authorized. I think she bypassed questioning MediaSentry's scruples by neutering their "evidence."

Additionally, she offers several potentially valid (in her opinion) defenses, which seem to include, "Other people can see my files?"

She accurately understands why an IP address does NOT equate with an individual.

The only thing she wants to review behind closed doors is the school's terms of service (the school is the ISP), to determine what legal expectation of privacy the students established with they signed a service agreement.

MediaSentry is operating illegally in a number of states, including Florida. Since we sue for everything down here, I'm just waiting... the RIAA has hit a few of our universities, too. If they are operating illegally, I would assume that nothing they find can be used as evidence in a court of law-- fruit of the poisonous tree?

its a start but its not there yet.