A new amicus curiae brief has been filed in Elektra v. Barker, pending before Judge Karas in the United Stated States District Court, Southern District of New York, by the Computer & Communications Industry Association and the US Internet Industry Association.
In their brief these computer and internet associations argue that
-the RIAA's brief offers a "misguided analysis of the section 106(3) distribution right";
-the RIAA is seeking to expand the concept of "distribution" to incorporate an overbroad concept of "making available";
-the RIAA's "[e]fforts ... to rewrite copyright law should not be countenanced...."; and
-the RIAA has overlooked the fact that in order for there to be a distribution there have to be "copies" or "phonorecords" and they have to be distributed to the public by sale, or other transfer of ownership, or by renting, leasing, or lending.
They pointed out that
Plaintiffs' proposed expansion of the distribution right would sweep into the reach of copyright law many activities not now covered by copyright law . Under such an elastic interpretation and ill-d efined standard, the Internet connections and equipment that members of Amici furnish may render them vulnerable to accusations that they "make available" a variety of
content, including copyrighted materials, to users . Such activities, e.g., providing Internet connections, however, do not constitute distributions within the scope of section 106(3) . If a vague conception of "making available" were substituted for the clear statutory provision of section 106(3), the boundaries of the right would become indeterminate and unpredictable, creating chilling effects on members of Amici and virtually every other participant on the Internet. For example, companies routinely include in their web pages hyperlinks that enable persons to navigate easily to other sites throughout the web by use of browser software. Indeed,
the web is a collection of hyperlinks . Even though the use of hyperlinks makes
content located elsewhere available to a web user, it does not constitute a distribution of that content under section 106(3) [See brief, pp. 10-11]
Amicus Curiae Brief of Computer & Communications Industry Association and US Internet Industry Association in Support of Defendant's Motion to Dismiss Complaint (Published at Internet Law & Regulation)
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