In a recent editorial, an attorney representing a defendant in one of the RIAA's 19,000 lawsuits over P2P technology made the case that the RIAA's arguments in Elektra v. Barker, if accepted by a judge, have the potential to undermine the very nature of the Internet. Here at Ars, we've previously touched on the RIAA's radical notion, first introduced in this case, that simply making files available on a shared folder constitutes infringement (regardless of whether the files were actually accessed by another party). The new editorial reiterates the dangerous absurdity of parts of the RIAA's arguments, but in favorably citing a recent EFF amicus brief in the case it also raises the question of who, in fact, is really the party arguing for the pre-digital status quo.

The EFF's most recent brief, summarized here and available here, has been covered here at Ars before. But it's worth taking another good look at, because of the odd and ironic way that it places the EFF on the side of arguing for a pre-Internet model of distribution, while the RIAA, in its own twisted fashion, tries to drag copyright law into the digital age.

To recap briefly, the EFF has caught the RIAA and their allies (the MPAA and the US Attorney General's Office) trying sneak through the courts a complete overhaul of existing copyright legislation. The change in the definition of a copyright owner's exclusive right of distribution that the RIAA seeks to have the court acknowledge is at once troubling and fascinating—troubling because, hey, it's the RIAA that's pushing this, and we all know they're Pure Evil(TM), and fascinating because in its own odd way the attempted alteration would "update" copyright law to take account of the reality of digital distribution in a manner that it currently does not.

Exclusive rights, and the RIAA's arguments against P2P

US copyright law gives rightsholders the following exclusive rights over their work:

The right to reproduce the copyrighted work;

The right to prepare derivative works based upon the work;

The right to distribute copies of the work to the public;

The right to perform the copyrighted work publicly; and

The right to display the copyrighted work publicly.

(Bitlaw has a good, quick rundown of these rights. For even more practical, layperson-friendly discussion of these issues, I like Nolo's The Copyright Handbook: How to Protect and Use Written Works, by Stephen Fishman.)

In its lawsuits against P2P users, the RIAA wants to argue two things. First, it wants to argue that illegal downloaders are infringing on the copyright owners' exclusive right to reproduce their copyrighted work. As the very word "copyright" suggests, the rightsholders' exclusive right to make copies of a work is at the very heart of copyright law, and the EFF in fact concurs with the RIAA on this issue, holding that P2P downloading is technically copyright infringement from a legal standpoint.

More controversially, though, the RIAA would like to argue that those who upload copyrighted works onto P2P networks are infringing on rightsholders' exclusive right to distribute copies of the work to the public. This argument that a digital transmission of a work that results in a copy on the other end equals distribution is where things start to get really, really interesting.

Defining "distribution"

The letter of US copyright law specifically and clearly stipulates that in order to "distribute" a copyrighted work, an actual, physical exchange of a material object (a book, a CD, a tape, etc.) must take place. In this sense, the Copyright Act isn't really cognizant of the concept of digital distribution of copyrighted works—it just isn't on the law's radar at all. Apparently, the DMCA didn't really fix things in this regard, either.

As far as the courts are concerned, the issue of distribution and digital transmission is significantly murkier. The EFF's brief illuminates just how murky the issue is, with some courts taking for granted that digital transmission does constitute infringing distribution and at least one lower court hewing to the letter of the law and ruling that it does not. The EFF therefore urges the US District Court to be the first court to explicitly tackle the issue of digital transmission and distribution, and to define "distribution" so that it requires the exchange of a physical object.

The part that's fascinating and somewhat ironic, at least to me, is that the EFF is now in the position of arguing in favor of an outmoded, pre-Internet concept of "distribution," and one that runs directly counter the plain sense of the way that both the language and the concept of "digital content distribution" is currently employed in just about any online venue where the topic is discussed. Would anyone argue that Apple is not, in fact, in the business of distributing music now? (Actually, that's a bad example, because Apple may be arguing exactly that in their ongoing dispute with Apple Records. Still, you get the point.)

Anybody who moves music, video, and text online is in the "distribution" business, more or less. That's how we think about it, and that's how we talk about it. So does it really make sense to continue to define distribution strictly in terms of the transfer of material objects, and then to adopt the fiction that consumers of digital content are somehow licensed "reproducers" and that the distributors of it are not actually doing any "distributing."

I'm not actually sure what's to be done here. On the one hand, the RIAA can't be allowed to single-handedly remake copyright law so as to favor its own business model and possibly wreck the Internet. But on the other hand, copyright law needs to be fundamentally rethought for the digital age. I just don't trust anyone in Washington—neither those in Congress who'll vote on any overhaul legislation nor those on K Street who'll write it—to do anything but stick it to consumers and innovators. The last time we tried something even remotely like this, we got the DMCA.

Conclusions

Ultimately, the Elektra v. Barker case is about case law and legal precedent. On one side is the RIAA and their allies, who'd like to have a high court "clarify" in a ruling that will bind the lower courts that digital transmission is indeed "distribution" per the Copyright Act. On the other is the EFF, who would also like a binding, clarificatory ruling to the opposite effect.

However this case turns out, it's going to have major repercussions for everyone in the digital content business. And however it turns out, I have no doubt that it's only the opening salvo in a battle that will take at least a decade to sort itself out. This case will be appealed, regardless of who wins, and I'm certain that the issue of digital transmission and distribution will eventually be dealt with in Washington, either by the US Supreme Court or by Congress.