Nancy Gertner is no shrinking violet. Her reputation as a lawyer and then as a judge who is willing to make hard decisions and challenge the status quo is well known.
Last week she did just this when she quashed the RIAA‘s subpoena against Boston University, which was targeted at learning the identities of some Boston University students who had posted copyrighted songs. Her rationale was that there was no clear evidence the students had violated the Copyright Act, and therefore their identies should be protected. Specifically, she found that “publication” (that is, posting the tunes online) was not the same as “distribution” (that is, the tune was downloaded). No evidence of download, no violation. However, whether this ruling will become the prevalent rule under copyright law remains to be seen.
The 52 page decision in Sire Records, Inv. v. Does 1-21 is available here.