Elektra v. Barker

This is one of the thousands of cases filed by RIAA member companies against individuals for P2P file sharing. EFF filed an amicus brief on behalf of the defendant asking the court to reject the recording industry's claims that file sharing infringes the distribution right. (According to the recording industry, simply "making available" a file on a P2P network infringes the distribution right.)

EFF's brief in this case argues that a copyright owner's distribution right only reaches material objects -- mere transmissions never infringe the distribution right. The CCIA filed an amicus brief arguing that merely "making available" does not infringe the distribution right unless an actual dissemination of the file is proven. The MPAA filed an amicus brief supporting the recording industry, as did the Department of Justice.

In March 2008, the court issued its ruling, stating that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. The court declined to address EFF's "material objects" argument, noting that the defendant's lawyers did not raise it in their brief.

EFF continues to fight the recording industry's "making available" theory of copyright infringement. Two courts have rejected the Elektra v. Barker analysis of the issue, and further litigation is likely before the question is clarified. For more on this topic, check this page summarizing EFF's efforts on behalf of file-sharers.