While it may seem like a fairly minor legal point, a dismissal of a request for summary judgment in the Napster investment lawsuit may actually turn out to be quite important. Judge Marilyn Patel notes that the right of distribution (which is part of copyright law) does not include simply making something available without actual proof of distribution. In other words, someone who makes a file available on a file sharing network may not be liable for copyright violation, as there's no other evidence that the file was actually distributed. This sounds somewhat similar to the ruling last year in Canada that said the recording industry didn't have enough evidence to go after file sharers just because certain files were available. Without evidence of actual distribution, then just leaving the file open isn't enough. In the Napster ruling, the attempt to include "making it available" under "distribution" was because of the recent US law that makes it a criminal offense to simply offer to share a pre-released copyrighted work. However, just because the existing Congress says something, it doesn't mean that a similar intent could be applied to the Congress that made the initial law. More importantly, Judge Patel notes that the new statute doesn't really support the claims that "making available" falls under distribution -- and they could have made it much more explicit if that's what they really intended. In fact, the new law makes it clear that making something available and actually distributing it are two separate things. Considering the number of lawsuits the entertainment industry has filed based on the idea that "making available" equaled "distribution" it will be interesting to see if anyone now tries to fight back on this point, perhaps using the words and arguments of Judge Patel.
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