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US judge says yes

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A US Judge on Monday upheld the view that sharing copyrighted music is infringement. It's a defeat for defendant Denise Barker and the Electronic Frontier Foundation, and a victory for the four record labels in the case, led by Warner's Elektra.

The Copyright Act is fairly clear. It defines "publication" as "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display" - but sensibly separates out performance or display itself from the definition. The legal code defines five exclusive rights of copyright: reproduction, adaptation, publication, performance, and display.

Now, digital media blurs the distinction between performance and distribution in lots of interesting ways, but unfortunately, none of these were raised in the case. The EFF instead homed in on the technical point of whether publication was distribution.

Barker had been sued in 2005 for sharing songs via the Kazaa P2P network. This lawsuit is a Motion to Dismiss the earlier ruling. The EFF argued that the labels had failed to prove the songs "were illegally downloaded or distributed by Defendant", had failed to point out the time and date of an infringement, and that the 2005 case violated the defendant's right to "fair notice" ie time required to prepare a defence. There was no proof that an "actual transfer" of copyright material had taken place, the EFF argued.

On the first point Judge Kenneth Karas agreed that the labels hadn't been able to offer proof, and even agreed that the defendants had failed to provide dates and times - but all that was irrelevant to the argument.

The EFF's case is "without merit", the Judge said, pointing out that the prosecution didn't need to. "The Court must assume the truth of all well-pleaded allegations of infringement," the Judge pointed out.

Judge Karas noted that the EFF had previously argued that because the Copyright Act defines sound recordings as "material objects", digital copies were not covered. No, really. But because the argument had not been raised in Elektra vs Barker, he couldn't comment.

The judge concluded that publication and distribution were synonymous, and "this choice of language was not a mere slip of the pen".

It wasn't all plain sailing for the record labels, though.

The judge took issue with the straightforward equation of "making available" with distribution. Making available isn't language that's in the Act, and it's because of cases like this that the copyright holders want to see it included. Some earlier courts have supported the notion of "making available" being equivalent to distribution, the Judge noted, but only in a limited sense.

"The great majority of courts that have considered the question, however, have stopped short of fully endorsing the 'make available' right. Instead, many such courts have expressed interest in the possible viability of the 'make available' right, without expressly reading the right into the statute or otherwise resolving the issue."

However, because Congress didn't expressly equate the offering to distribute with making available, the court concluded, the record labels failed to state a claim.

Summing up, the Court rejected the argument that the labels' "making available" argument was invalid, and so threw out the EFF's motion to dismiss the case. ®

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