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MA Court Decision Introduces Dispute About Online Infringement

by Joe Laferrera

For several years, the Recording Industry Association of America (RIAA) and record companies have attempted to protect the music industry by aggressively pursuing individuals who make copyrighted music freely available to others over the Internet. To thwart the illegal dissemination of copyrighted music, the RIAA has instituted thousands of lawsuits against people who have offered up music files to so-called peer-to-peer networks, where they can be downloaded for free. With some high profile exceptions, these lawsuits have been largely successful, leading to settlements or favorable verdicts in court.

There is no longer much legal doubt that distributing hundreds or thousands of copies of a song to the public without permission constitutes copyright infringement, but evidentiary and technical hurdles can still make these cases difficult to pursue. First, the RIAA typically requires assistance identifying the infringing parties, since the exchange of files over peer-to-peer networks can be done anonymously. The RIAA only has the “IP” or Internet addresses of the computers involved, and it frequently issues subpoenas to Internet service providers (ISPs) that provide the Internet connections in order to match the IP addresses to actual names. Once a defendant is identified, proving that the songs in question were actually copied by third parties can also be difficult. So, the RIAA has argued that simply making copyrighted music “available” over the Internet is tantamount to copying, and therefore establishes proof of illegal infringement.

On March 31, 2008, United States District Court Judge Nancy Gertner, sitting in the District of Massachusetts, largely rejected the music industry’s “access equals infringement” position. Her 55-page decision in LondonSire Records, Inc. v. Does 1-21 addresses the record company’s attempt to compel Boston University to identify the users of certain suspect IP addresses. Judge Gertner granted the defendants’ motion to quash the subpoenas, although she left open the possibility of a modified subpoena to address privacy and identification issues.

The most interesting part of the decision, however, concerns the applicability of copyright law to plaintiffs’ allegations: whether the defendants have violated the strictures of the Copyright Act, which prohibits unauthorized “distribution” of protected works, by making copyrighted songs freely available on the Internet. Judge Gertner concluded that “merely exposing music files to the Internet is not copyright infringement.” She rejected the efforts by the plaintiffs (and some other courts) to equate the defendants’ “publication” of the files with their illegal “distribution,” stating that “even a cursory examination of the statute suggests that the terms are not synonymous.” She holds that “the defendants cannot be liable for violating the plaintiffs’ distribution right unless a ‘distribution’ actually occurred.” In short, a college student who made hundreds of music files available over a peer-to-peer network has not violated the Copyright Act until the first download.

This view suggests a departure from several older decisions, and even some recent ones. Indeed, on the day the decision in London-Sire issued, the federal District Court for the Southern District of New York reached a contrary conclusion in Elektra Entertainment Group, Inc. v. Barker, stating that “Several courts (including the Supreme Court) that have wrestled with the Copyright Act have generally found…’distribution’ and ‘publication’ to be synonymous.”

Whether, and how, the courts reconcile this issue is still unclear. But until they do, the music industry may find some places far less hospitable than others when pursuing their lawsuits.