This link has been bookmarked by 3 people . It was first bookmarked on 04 Apr 2008, by Jonathan Bailey.
Earlier this week, a decision by the judge presiding over Elektra v. Barker was widely misreported as providing substantial support for the argument that making a song available over a P2P network constitutes copyright infringement. Another decision rendered the same day and just brought to light by the EFF actually does come to that conclusion, and the judge in that case has quashed a subpoena issued by the RIAA to learn the identities of four anonymous Boston University students.
Judge Gertner did find another EFF argument unconvincing, however. In this and other cases, the EFF had argued that the Copyright Act mandates that an actually, physical copy change hands in order for infringement to occur. Not so, according to the judge, who ruled that the EFF was relying on an "overly literal" definition of "material object." Whether the distribution takes place electronically or physical makes no difference.
As was the case in Elektra v. Barker, the judge did note that an "offer to distribute" is sufficient basis for a copyright infringement claim, which means that the RIAA can continue to make that allegation in its lawsuits. There is, however, a big difference between having evidence for a copyright infringement claim and showing by a preponderance of evidence that infringement actually took place.
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