Making Available Is Not Distributing — Part II

from the good-news dept

Last month, it was looking like Judge Marilyn Patel actually understood one of the biggest issues in all of these lawsuits against people for file sharing. Simply offering up a file for sharing is not the same as actually distributing it. In other words, if you have a file left open for sharing purposes, that does not mean you’ve definitely distributed that file. The industry only sees that it’s available — not that you gave it to anyone. Judge Patel suggested this in denying summary judgment to the recording industry, but has now granted summary judgment to the other side, providing more details on this point. It’s a point of clarification, to be sure, but one that makes a lot of sense, and could come back to haunt the entertainment industry later on. Remember that, up in Canada, where they realized this much earlier, it meant that the recording industry often didn’t have enough evidence to sue people for sharing files. Of course, the next fine point that the courts should tackle is the industry’s willingness to sue the owner of the broadband connection, without any proof as to whether it was that person who broke the law or someone else using the connection.

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