Last week, EFF filed an amicus brief on behalf of Tenise Barker, one of the more than 19,000 Americans who have been sued by the record labels for file sharing. Ms. Barker, represented by Ray Beckerman, is fighting back in court.
EFF's brief makes one narrow but important point: P2P file sharing does not infringe a copyright owner's "distribution right."
The major record labels have been suing file-sharers for infringing both the reproduction right (for downloading) and the distribution right (for uploading). Because most of these lawsuits settle or go undefended, simply alleging infringing copying should be enough. So why sue on both grounds?
Answer: the record labels are hoping to quietly expand the "distribution right" to include Internet transmissions. In other words, the major labels are trying to rewrite the rules on the backs of people like Tenise Barker, hoping to get new leverage in other contexts.
The labels are aiming to stretch the distribution right in two ways. First, they are claiming that "merely offering" to upload a file infringes the distribution right, even if no one ever takes you up on the offer. In other words, the labels are hoping to fool a court into conjuring a brand new beast: attempted copyright infringement. Judge Patel rejected exactly this notion in the Napster case.
But even more importantly, the labels are hoping that the courts will extend the distribution right to include transmissions over the Internet. When a file-sharer uploads a file, the file is transmitted and a copy retained at the other end. While that may look like a "distribution," the Copyright Act does not give a copyright owner control over all distributions, but rather only distributions of physical, material objects ("copies and phonorecords"). So, unless a file-sharer has unscrewed her hard drive and handed it to another person, she is not infringing the distribution right, because that right only extends to distributions of physical objects.
Why does it matter? If transmission plus reproduction equals distribution, then suddenly lots of people start looking like distributors. When XM and Sirius sell you a receiver that can record their broadcasts, or Comcast provides DVRs to subscribers, they might find themselves running afoul of this new, expanded "distribution right." This, in turn, would give the movie and music industries another weapon in their fight against new technologies.
After decades of lobbying in Congress, the entertainment industries already have plenty of weapons at their disposal. Bullying individual file sharers shouldn't get them new ones.
UPDATE: The Computer and Communications Industry Association (CCIA) and U.S. Internet Industry Association (USIIA) have also filed an amicus brief in Elektra v. Barker addressing the question of the proper scope of the 106(3) distribution right.
UPDATE: The United States has filed a brief in the case supporting the record labels, arguing that transmissions are covered as distributions under copyright law.