Thanks to p2pnet.net for alerting us to this story:
In Arista v. Does 1-21, the RIAA's case targeting Boston University students, the RIAA's subpoena has been quashed by District Judge Nancy Gertner.
The 52-page decision recognized privacy rights of students, and the existence of First Amendment issues in disclosing the identities of anonymous people accused of copyright infringement, and engaged in a balancing test between those rights and the rights of copyright owners, and quashed the subpoena in the first instance.
But the ruling is not final. Judge Gertner permitted the RIAA to subpoena just Boston University's "terms of service agreement", if there is one. She is then going to review that agreement in camera before deciding the larger question as to whether the RIAA is entitled to subpoena student identities. The judge felt that without the "terms of service agreement", she could not determine what the students' expectation of privacy is, and therefore could not complete her balancing test.
The decision, which came out the very same day as the Elektra v. Barker decision, covered some of the same issues as Barker.
For example, Judge Gertner agreed with defendants that there is no "making available" right. On some issues she came to different conclusions than those reached by Judge Karas. For instance, the Court correctly pointed out that "publication" and "distribution" are NOT synonyms under the Copyright Act, and that distribution DOES require actual dissemination of copies.
The judge rejected the EFF's argument -- debated between the EFF and the US Department of Justice in Barker but not raised by plaintiffs or by defendant in that case and not decided by Judge Karas -- that electronic transmissions could never implicate the distribution right.
March 31, 2008, Decision (542 F.Supp.2d 153, 2008 WL 887491)
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* Document published online at Internet Law & Regulation
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