The Computer & Communications Industry Association and the U. S. Internet Industry Association have both sought permission to file amicus curiae briefs in Elektra v. Barker, pending before Judge Kenneth M. Karas in the United States District Court for the Southern District of New York, in Manhattan.
In doing so they have joined the Electronic Frontier Foundation, which previously requested permission to file an amicus brief in support of Ms. Barker's dismissal motion.
In a letter by their attorneys, Winston & Strawn LLP, the two associations indicated that their proposed brief would be to counter the RIAA's new argument that Ms. Barker would have violated the plaintiffs' "distribution" rights under the Copyright Act by simply "making available" certain files in a shared files folder.
"The concept of "making available" can be so broad as to encompass the activities of virtually any company or person active on the Internet.
"The prospective amici fear that such an expansion of the "distribution" right under section 106(3) would be both unwarranted and harmful because it would (1) expand copyright law to cover activities not properly covered by the Copyright Act and (2) blur the sharp distinction between the "distribution" right and other copyright rights, such as the right of public performance or public display under 17 U.S.C. [sections] 106(4) and (5). Improper expansion of the Copyright Act and reconfiguration of copyright rights are the province of Congress, not the courts, and Plaintiffs' arguments would disturb existing law and settled expectations. The prospective amici believe it is very important for the Court to apply the plain statutory language of the Copyright Act rather than to adopt the Plaintiffs' interpretation of the law."
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