Wednesday, August 02, 2006

On the Importance of Elektra v. Barker

This is a personal opinion piece by Ray Beckerman, who is one of the attorneys representing Tenise Barker in Elektra v. Barker. Thanks to Jon Newton of who inspired it.

What is the most important RIAA case in the country?

Arguably it's Elektra v. Barker, pending in Manhattan federal court before Judge Kenneth Karas, a recently appointed judge who is a former federal prosecutor.

Not because there's anything different about the complaint -- it's the exact same boilerplate complaint the RIAA has used in 19,000 other cases.

Not just because Ms. Barker made a motion to dismiss the complaint -- i.e. attempting to stop the lawsuit in its tracks on grounds that would be fully applicable to ALL the RIAA's cases -- because there are at least half a dozen other cases in which such motions have been made.

It is the most important case because the RIAA has made it so.

The RIAA apparently made a considered decision to choose this time and place to go for broke.

The RIAA -- seemingly deliberately -- provoked a massive confrontation, in which the MPAA, the American Association of Publishers, and the United States Attorney General, are lining up against not only Ms. Barker and all the other RIAA victims out there, but against the Electronic Frontier Foundation and the trade associations which represent most of the giants of the internet and computer industries.

Ms. Barker made a simple motion to dismiss the complaint, saying it did not give her adequate notice of the infringement she's accused of.

In response, the RIAA made its most shocking and outlandish arguments to date, claiming that merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', is in and of itself a "distribution" and a copyright infringement. I.e., even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement.

Learning of this, The Electronic Frontier Foundation, The Computer & Communications Industry Association, and the U. S. Internet Industry Association -- realizing that if this absurd argument were accepted the entire internet might be shut down in the United States, since the internet is nothing more than a giant network of hyperlinks making files 'available', and also realizing that Ms. Barker doesn't have the financial resources to wage a full scale war protecting the entire internet from destruction -- were quick to file amicus curiae briefs pointing out to Judge Karas the absurdity of the RIAA's arguments.

Shortly thereafter the MPAA filed an amicus brief supporting the RIAA's argument, the American Association of Publishers requested permission to file a similar brief, and the United States Department of Justice wrote to the Court indicating the possibility of filing a "Statement of Interest".

All to collect about $6000 from a young nursing student who lives in the Bronx?

I don't think so.

Links to all the applicable litigation documents are collected under Elektra v. Barker in and

(Fortunately, publicly filed documents are in the public domain -- last I heard -- so I can still lawfully "make them available" to you.)


PS. The case has taken on added importance in light of the fact that of the 7 motions to dismiss of which I am aware, 5 have been denied. If this motion is also denied, it will be years before the issue can percolate up to the appellate courts, because denials of dismissal motions are ordinarily not appealable. If, on the other hand, this motion is granted, and the case against Ms. Barker thrown out, it is likely that the RIAA will appeal and the issue will get to the U. S. Court of Appeals for the Second Circuit within a matter of months. Once we have a decision from the Second Circuit -- one of the most important copyright courts in the country -- we will have a pretty good idea where we stand.

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


[[Neo[[ said...

Is there not a point in which the RIAA can actually go TOO FAR? One would think there would be courtcase effectively stopping the RIAA from persuing on such broad-sweeping grounds, before the courts ruled in favor of effectively halting technological innovation.

But as it was mentioned in a podcast by Leo Laporte and the EFF last week (TWiT 49A), the people responsible for the [technology] laws don't bother making them until it affects them personally - simply because they don't use/understand technology.

Alex H said...

Man, Google is in the shit if the RIAA wins that one.

Alex H
Tech Loves Art

And for the previous poster, someone who does understand the technology:
Pete Ashdown for U.S. Senate

eclectica said...

A lot of people believe that in filesharing, downloading is permitted while uploading is not permitted. With the main internet traffic protocol using TCP/IP though, it's hard to make a distinction, since traffic flows both ways.

While the RIAA claims to be targeting just uploaders, what they are actually doing with their scant evidence is targeting people who are sharing, and claiming that they are uploaders.

The RIAA referred to downloading as "unauthorized reproduction" and to uploading as "unauthorized distribution".

EFF has filed the position that uploading does not constitute "unauthorized distribution" because electronic transmissions are not covered by that definition. And CCIA & USIIA have also added another argument: which is that the act of sharing or making available, does not constitute an act of distribution.

If the EFF and CCIA & USIIA positions are upheld, then that would force the RIAA strategy upside down, and require that they target downloaders instead of uploaders.

Mousky said...

Does this mean that I am guilty of copyright infringment if my CDs are accessible? I guess I'll have to store them in a safe or something, otherwise I may be guilty of 'distributing' copyrighted material. What are they smoking over at the MPAA and RIAA these days?

raybeckerman said...

Thanks, guys. Alex H. makes a very important point. These cases will be making law, and if it goes the RIAA's way, the law will be rewritten so that the internet as we know it will be gone.

The computer industry -- if it was smart -- would be setting up a legal defense fund for people like Ms. Barker and "derstucka".

Good luck "derstucka".