Friday, February 17, 2006

Electronic Frontier Foundation Requests Leave to Serve Amicus Curiae Brief in Elektra v. Barker

The Electronic Frontier Foundation has requested permission to file an amicus curiae brief in support defendant's motion to dismiss complaint in Elektra v. Barker.

February 15, 2006, Letter of Fred von Lohmann (Published at Internet Law & Regulation).

The proposed amicus brief would deal solely with the issue of "whether the "distribution right" granted to copyright owners by 17 U.S.C. § 106(3) encompasses transmissions over computer networks." In its letter, EFF said:

Plaintiffs in their opposition brief argue that their § 106(3) rights encompass such transmissions. However, the plain language of the Copyright 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. Accordingly, the § 106(3) right simply has no application in P2P file-sharing cases, as no physical object changes hands when individuals upload or download music over the Internet.

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StephenH said...

I think that is an interesting question, if the law says "Tangible Object", and that is upheld, it has the potential to reverse Napster, Aimster, Grokster, MP3Board, and even copyright in general on the web itself because if the law says "Tangible" meaning a "Physical Object", data is not a physical object changing hands.

qwasinaut01 said...

If that is upheld then it seriously undermines the "distribution right" for all copyright holders, as any electronic distribution would be unprotected.