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.

Like the Barker decision, the EFF submitted an amicus curiae brief in London-Sire v. Does 1-4 raising many of the same arguments that it had in Elektra v. Barker and Atlantic v. Howell. The EFF argued that simply making music available on a P2P network did not rise to the level of copyright infringement and that the RIAA needed to demonstrate that someone other than its authorized agent, MediaSentry, downloaded the file. Judge Nancy Gertner agreed.

"Merely because the defendant has 'completed all the steps necessary for distribution' does not necessarily mean that a distribution has actually occurred," wrote Gertner in her order. "As noted above, merely exposing music files to the Internet is not copyright infringement."



Judge Nancy Gertner

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.

Another issue addressed in the judge's ruling was how far a university should be required to go in order to identify suspected infringers for the RIAA. She notes that IP addresses cannot always be traced to a particular individual with certainty and says that Boston University's coughing up a "long list of possible infringers" would in effect greenlight an RIAA fishing expedition.

While Judge Gertner is throwing out the RIAA's subpoena, she is allowing the labels to refile. Boston University will then need to submit a copy of its terms of service (if it exists) along with the possible identities of those who were using the IP addresses in question when MediaSentry stumbled upon the shared folders. Once that information is in hand, the judge will make a decision on whether or not the data will be disclosed to the RIAA.

The RIAA sees this as only a temporary setback, with a spokesperson telling Ars that it is "confident" that it will get its hands on the identifying information at some point. It also took issue with the judge's decision on the "making available" argument. "We do not believe that the court's findings on this issue—which are at odds with the findings of numerous other courts to have addressed this issue, as well as the United States Copyright Office and Congress itself—are necessary to the court’s decision," the spokesperson said.

The fact that two judges issued such different rulings on the same day shows how much new ground is being covered by the RIAA's lawsuits—in no small part due to defendants that are willing to stand up to the record labels' bullying tactics. Ultimately, the question of what, exactly, needs to happen on a P2P network in order to show infringement is far from a settled issue. As the EFF points out in its press release that the wide variance in rulings so far means that other judges will have to deal with the same issues in other lawsuits brought by the RIAA. So far, there has been only a single trial, while the RIAA has even had some difficulty winning default judgments in cases where the defendants never showed up in court.

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