Judge kills RIAA subpoena: making available not infringement

Judge Gertner did find another EFF argument unconvincing, however. In this and other cases, the EFF had argued that the Copyright Act mandates that an actually, physical copy change hands in order for infringement to occur. Not so, according to the judge, who ruled that the EFF was relying on an "overly literal" definition of "material object." Whether the distribution takes place electronically or physical makes no difference.

As was the case in Elektra v. Barker, the judge did note that an "offer to distribute" is sufficient basis for a copyright infringement claim, which means that the RIAA can continue to make that allegation in its lawsuits. There is, however, a big difference between having evidence for a copyright infringement claim and showing by a preponderance of evidence that infringement actually took place.

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