Courts disagree on legality of uploading

Leaving a copyrighted song where others can get at it with peer-to-peer software doesn't constitute a copyright violation until someone downloads it, a federal judge said in a record industry lawsuit against college students.

The Boston judge's comments in a Monday pretrial ruling conflict with statements, also made Monday, by a New York federal judge that leaving a copyrighted file accessible could be illegal, even if nobody downloads it.

At issue in both cases is whether people who initially download or own copyrighted music are legally liable if they leave music files accessible to be shared by others. Peer-to-peer sharing services allow computer users to make files on their PCs available to a multitude of other users.

"Both of these rulings are important because it is the first time judges have thoroughly analyzed these questions," said Fred von Lohmann, a staff attorney with the Electronic Frontier Foundation, a San Francisco-based nonprofit and online free-speech advocate that filed briefs as an interested party in both cases.

Neither judge questioned that copy infringement occurs when people using peer-to-peer software search the Internet for a particular piece of music and then download it without authorization.

However, Judge Nancy Gertner of Boston found that "merely exposing music files to the Internet is not copyright infringement." The student-defendants could claim "they did not know that logging onto the peer-to-peer network would allow others to access these particular files," Gertner wrote.

But Judge Kenneth Karras in New York, ruling in a case against a single computer user, said just placing a copyrighted music file in a computer folder shared by peer-to-peer software users could amount to illegal publication of it.

The music industry has sued more than 30,000 people for illegal downloading, many of them college students using university Internet services. Many of the cases have been settled by the defendants agreeing to pay record companies a few thousand dollars apiece.

Some of the defendants may never have known whether anyone else downloaded the music they put in shared folders.

Gertner temporarily blocked record companies from seeking the identities of Boston University students they suspect have downloaded music illegally. The record companies that brought the case are trying to identify the students through their addresses on the university's computer network.

"It's important to note that the decision is not final," the Recording Industry Association of America said in a statement regarding Gertner's ruling. "The court has put forth a specific process to address its concerns before the relevant information is transferred to us. We're confident that the court will ultimately allow us to obtain the identifying information, as have courts across the country in similar cases."

Raymond Sayeg, a defense attorney representing students in the Boston University case, called Gertner's finding "a landmark decision that will change how these cases go forward.... The level of proof has gone up significantly."

If courts maintain that a copyright violation occurs only when a music file is downloaded, record companies would have to track down evidence that downloads occur and who is involved, von Lohmann said.

"The industry doesn't want to be put to the trouble to prove that someone actually downloaded it from you," he said.