The Electronic Frontier Foundation's Fred von Lohmann sez, "Agreeing with EFF's amicus brief, a federal court in Boston in a 52-page ruling concludes that 'merely exposing music files to the internet is not copyright infringement.' The Boston court disagrees with a ruling in New York on the same day, which found that a mere 'offer to distribute' a song could violate copyright, even if no one took you up on it. Obviously, this is a fight that's not over yet."
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).
Rogue archivist Carl Malamud writes, “Third year Harvard Law School student Kendra Albert did a very nice job on her powerful opinion piece in the Harvard Law Record, the student-run newspaper.”
Melt chocolate into slabs, coat with blue candy-melts, and stud with broken oreos and edible googly eyes and voila: it’s as though you blenderized a thousand Cookie Monsters, rolled them flat, and baked them.
For decades, Warner/Chappell Music claimed to own the rights to the Happy Birthday song, despite the reams of copyright scholarship and historical research showing they had no legitimate claim.
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