Freemor’s Weblog

An interesting and I feel thoughtful decision by judge Neil V. Wake. Wake ruled that “Merely making a copy available does not constitute distribution”. This has caused much noise in the blogosphere but to my mind it is just a clarification of how the existing law should be interpreted and not a major change in the way things are done. In reading the decision Wake points to several examples where the same has been decided in court.

The section that I find most interesting is the one that begins:

4. Insufficient evidence of primary versus secondary liability

The recording companies motion for summary judgment also fails because they
have not proved that a KaZaA user who places a copyrighted work into the shared folder
distributes a copy of that work when a third-party downloads it. Under their theory, a
KaZaA user transfers a copy of the work to a third party and is therefore liable as a
primary infringer of the distribution right. However, in the KaZaA system the owner of
the shared folder does not necessarily ever make or distribute an unauthorized copy of the
work. The owner certainly does not distribute the copy that resides in the shared folder,
for that copy never leaves its location on the owner’s hard drive. Rather, a copy of the
copy in the shared folder is made.

It will be interesting to watch this case and see where it goes. I think the defendant will get off. not because he wasn’t sharing copyrighted material but because he may not have knowingly authorized the distribution of the copyrighted material and my have even been un-aware it was being distributed until lawyers showed up at his door. Many P2P applications will “Scan your drive” as part of their initial set up and share any MP3’s etc that they find. If the defendant was a “nexter” (as many are) He may have completely missed that point.