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Mar/06

EFF Amcus Brief On Section 106(3) And Transmissions


EFF amicus brief by Fred von Lohnmann and Wendy Seltzer in Elektra v. Barker, a Southern District of NY case on file-sharing:
From the Background and Summary of Argument:
Defendant Denise Barker, like more than 19,000 others, is accused by several major record companies of using peer-to-peer (P2P) file sharing software to download and upload music. When individuals use P2P file sharing software to make unauthorized copies of sound recordings, record companies are within their rights to sue them for making unauthorized reproductions. See 17 U.S.C. Section 106(1) (exclusive right of reproduction). In the thousands of suits filed thus far, however, the record companies have also alleged infringement of their distribution rights under 17 U.S.C. Section 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 Section 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. Section 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 Section 106(3) to encompass intangible transmissions between computers over the Internet.
To support their view, Plaintiffs cite a handful of rulings, none binding on this Court, that include loose language regarding the Section 106(3) right. None of those rulings includes any analysis of the question posed by Plaintiffs’ complaint here: do intangible computer network transmissions infringe the Section 106(3) right? In brushing past this threshold question, Plaintiffs fail to mention the most relevant Second Circuit precedent, see Agee v. Paramount Communications, Inc., 59 F.3d 317 (2d Cir. 1995), or the leading scholarly treatment of the issue, see R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected Solution to the Controversy Over RAM Copies, 2001 U. OF ILL. L. REV. 83, 122-38 (2001) (hereafter “Reese, The Public Display Right”), both of which reject Plaintiffs’ view.
Expanding Section 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 Section 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.

Footnotes omitted.
EFF discussion of case here.

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