Electronic Frontier Foundation Files Amicus Brief in Elektra v. Barker

The Electronic Frontier Foundation (EFF) has filed an amicus brief in Elektra v. Barker, pending before Judge Karas in the United States District Court, Southern District of New York, in support of Ms. Barker's dismissal motion and in opposition to the RIAA's argument that merely having files of copyrighted songs in a shared files folder is in and of itself a copyright infringement in violation of the copyright owner's "distribution rights".

The EFF argues:

In the thousands of suits filed thus far [by the RIAA]...the record companies have ... alleged infringement of their distribution rights under 17 U.S.C. § 106(3), apparently in hopes that an expansive judicial interpretation of the distribution right may support quick summary judgments based on the bare fact that a defendant has “offered” files for download.

Not all “distributions,” however, infringe § 106(3). The Copyright Act grants to
copyright owners the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). The plain language of the Act— as well as legislative history, historical practice, and binding Second Circuit precedent— requires that a physical, tangible, material object change hands before the distribution right can be infringed. Plaintiffs’ complaint ignores this plain
statutory language and instead attempts to expand § 106(3) to encompass intangible
transmissions between computers over the Internet.

..........

Expanding § 106(3) to include transmissions would not only contravene the plain
statutory language, but would upset settled expectations in a variety of contexts and upset the delicate balance struck by Congress in the Copyright Act. Congress has enacted several copyright limitations, exceptions and statutory licenses based on the assumption that transmissions are properly encompassed by the public performance right, not the distribution right. Treating Internet transmissions as “distributions” under § 106(3) threaten those statutory provisions.

Accordingly, because “the distribution right as currently framed… does not appear to encompass transmissions of copyrighted works over computer networks,” Reese, The Public Display Right, at 126-27, and because Plaintiffs did not (and cannot) allege that Ms. Barker transferred any material objects embodying sound recordings, this Court should dismiss Plaintiffs’ distribution claim.

Amicus Curiae Brief of Electronic Frontier Foundation (Published at Internet Law & Regulation)
(Alternate link)

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