Sunday, February 26, 2006

Amicus Brief Filed in Elektra v. Barker by Computer & Communications Industry Assoc. & US Internet Industry Assoc.

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)

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


Acuera said...


"17 U.S.C. § 1004. Royalty payments
(b) Digital audio recording media. The royalty payment due under section 1003 for each digital audio recording medium imported into and distributed in the United States, or manufactured and distributed in the United States, shall be 3 percent of the transfer price. Only the first person to manufacture and distribute or import and distribute such medium shall be required to pay the royalty with respect to such medium."

Insofar as the interests of the artists and copyright owners are protected by this act, would this not preclude the RIAA lawsuits?

If a person offers a copy of a song over some p2p network, with the understanding [and perhaps imbedded text tag expressing this condition] that such music is offered only if the recipient intends to burn it to so taxed Digital Audio CD media, it would seem to preempt any further claims of copyright violation.

Also, a person who has a large collection of LP records [or cassette tapes, or CDs] may wish to offer these for sale. Since the condition of said vinyl/tape/CD phonorecords is most critical, a user might make recordings of the same and send mp3/ogg/? copies over the internet to prospective buyers, so that they may listen to these and see if the quality of the used record is satisfactory to them. I can imagine that a person selling a large number of LP records or tapes or CDs might want to use p2p networks to promiscuiously broadcast such sound recordings and add a text tag to each that would facilitate an prospective purchaser contacting the owner of the Original copy to negotiate the terms of sale and delivery. Would not such pre-sale quality verification be legal?

raybeckerman said...

Dear acuera,

Sorry but I can't dispense legal advice over the internet.

Best regards


raybeckerman said...

Dear alan w

Thanks for your support.

Best regards,