Boston judge: making files available to download isn't piracy

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).

Link (Thanks, Fred!)


  1. See? We can be very technologically cultured here in Boston. Hey! Wait… what’s that!? Blinking LEDs!?!? Holy mother of Zeus!!

  2. Free water comes out my tap and I use it. But I also buy bottled water. I pay for a product that I’ve been told is better than the free stuff (I’m a lemming). But what if people just decide that free’s the only way to go? We trust that someone’s going to be good enough to buy a song instead of download it for free. We are such a trusting people. Quick, someone straighten me out. I want figures that support that give-a-way marketing works with digital products. All I see in the world is people who want somethin fer nothin.

  3. Jeff, the question you raise is legitimate, but has very little to do with the blatant need for copyright reform, or at least precedent-setting clarifications to existing copyright law.

  4. Letter-Day Saints, huh?

    Typos notwithstanding, this ruling is a good, good thing. Let’s see some of the rest of our nation’s judges follow this ruling and get that precedent working on our side for a change.

  5. #2 Jeff: While the free vs. not free debate is important, your analogy to tap vs. bottled water isn’t that great.

    First, tap water isn’t free if you pay your city for water service.

    Second, depending on where you live, tap water is of lesser quality than bottled, even if this is a perceived quality influenced heavily by marketing.

    Third, your tap doesn’t dispense plastic bottles, and it doesn’t keep your water cold for you until the moment you need it, like a bottle sitting in a vendor’s refrigerator does. Tap and bottled are different products.

    That’s the problem with digital music distribution; a song purchased and a song shared or pirated are exactly the same.

    That said, I agree with #3. I don’t want to be a criminal because I have a shared folder on my hard drive.

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