The courtroom machinations of the RIAA have begun to look even more sinister (did you think that was possible?,) given Fred von Lohmann's most recent analysis of the way RIAA lawyers are playing their case against Denise Barker, a woman they're taking to court for file sharing.
von Lohmann writes:
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 Denise Barker, hoping to get new leverage in other contexts.
What exactly does that mean? As von Lohmann explains, the RIAA are trying to plead the case that sharing a file, whether it's downloaded or not, should count as a copyright infringement. He calls this phenomenon an attempt to make "attempted copyright infringement" illegal, though it sounds eerily remniscent of a good old-fashioned Orwellian thoughtcrime to me, i.e., - "that file was shared, which means you were expressing a tacit respect for the idea that people might want to download it, thus you are infringing copyright." Classic. But the scariest part, as von Lohmann discusses, is the expectedly anti-technology slant of this view of copyright.
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.
It would seem at though making anything available to record without the express consent of the copyright owner (in the case of music, label) would make the radio station legally culpable. As Lawrence Lessig has recently discussed, these anti-technology policies mark a very visible and extreme shift away from a "free culture" and towards one where independent innovation is liscensed out of existence - where creators of new technology are legally prohibited from stepping on the toes of whatever corporation happens to have an interest in something more archaic.
