"Von Lohmann contends that the exclusive distribution right of copyright holders -- "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" -- covers only the distribution of physical objects."

That's not true. No where in the Copyright Act that copyright protection extends only to physical product. Infringement in the real world is infringement in the digital world. That statement is ridiculous and doesn't help his credibility as someone knowledgeable about these issues.

Judge for yourselves, lawerly readers. This is from Section 101, the definitions portion of copyright law:
"'Copies' are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term `copies' includes the material object, other than a phonorecord, in which the work is first fixed."
"`Phonorecords' are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term `phonorecords' includes the material object in which the sounds are first fixed."
The law doesn't define material objects, but Websters equates material with physical or "of matter," I guess we could debate whether pulses of voltage are physical objects, but they're certainly not fixed. That's why transmissions don't seem to fit the bill, but again, IANAL.

@Jon Healey:
I see what you are getting at, but digital copies aren't abstract ones and zeros floating about in some idealistic Platonia - they are stored on a physical medium. If we are willing to accept that the definition of an illegal copy can be applied to just one track out of many on a CD (or even to single sample in an otherwise original track), there is no reason why this cannot be extended to a single file or fragment of same on someone's hard-drive. That too, in the end is a physical region of magnetic material. No difference.

Transmissions are also conducted through a physical medium, by the way. Even wireless Internet goes down a series of wires sooner or later.

I'm out of my depth here, KW, but it seems to me that the word you're skipping over in the definitions is "fixed." Ones and zeroes passing through the network aren't fixed. They become fixed when they arrive at the downloader's hard drive. You might argue that the uploader makes a fixed copy on his/her machine in the process, too, but I don't believe that's how the process works, technically speaking.

I agree with Marcus. In the 'definitions' section, we see that both 'copies' and 'phonorecords' include language referring to previously undeveloped methods of creation and playing. That language was purposely created vaguely for this very application. In order to fully protect copyright holders, the language allows for the addition of new formats and transmission processes to be covered.

If the issue is the word 'fixed', well then let's all take a look at our music folders. Is it a jumble of 1s and 0s that we have to rearrange ourselves to create each song? No. The 1s and 0s are organized with a starting point and a finish line - Fixed.

And as far as transmission is concerned - you wouldn't arrest someone for delivering drugs to another person's house would you? Even if it weren't their drugs? Oh wait....

The bottom line is that digital files (ie 'copies') of protected material absolutely fall under copyright law.

And while I do not condone ANY of the RIAA's tactics in trying to obtain $$$ from lowly file-sharers, I support copyright law and an artist's right to be compensated.

Good points all, Mr. Matt, but the issue here isn't whether copyright law protects files. It's a question of who should be sued. The lawyers I cited in the post contend that the downloader is clearly infringing by making a fixed copy onto his/her hard drive. The uploader, though, isn't distributing in the sense of delivering drugs. It's more like a pharmacist who leaves the codeine in an unlocked cabinet, with a sign saying "Codeine Here."

An alternative way of looking at this came from Judge Karas in New York. In the ruling linked above, he said that in lieu of accusing someone of making files available, the RIAA could allege "that Defendant made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display." In Karas' view, then, putting something in one's shared folder isn't distributing, it's offering to distribute.

I don't know if this issue has been discussed, but perhaps the RIAA could sue under a contributory infringement theory. The case involving Grokster and MGM Studios established that file-sharing networks could be liable for contributory infringement if they induced infringement by third parties through specific acts or through the distribution of a product used to infringe if the product has "no substantial or commercially significant non-infringing use."

If a file-sharing network could be liable for inducing copyright infringement, couldn't individual uploaders be held liable under the same legal theory? They are placing p2p files in shared folders with the object of promoting their use to infringe copyright, so they might be responsible for the infringement by downloaders.

The counter-argument would be that the intent of uploaders is not to induce infringement, but to share potentially non-infringing forms of p2p files. But considering that most p2p files are infringing, a court might be swayed either way.

But again - the question is not /whether/ the record industry will sue. But under what law they should be reasonably expected to receive compensation.

Clearly, none of the existing laws offer a compelling case, without somewhat excessive "interpretation".

If you consider a radio station (yeah, the old-style analog transmitter type thing, probably even AM) then the radio station can broadcast a song and maybe no one even listens to that song. The broadcast is not any sort of physical construct, and even when it goes through the radio receiver at the other end there is merely a conversion of electromagnetic waves into acoustic waves -- still no physical transcription into any fixed format.

However, it is well established that a radio station requires license to broadcast copyright material. I would expect someone uploading files into a P2P network would require at least the same license as a radio station. I'm not sure which exact bit of law covers radio broadcasts, maybe there's something highly specific in that to exclude the Internet, maybe the case law is weak and might be revisited (seems unlikely after so many years)

Tel's point is a good one. Broadcasting music violates the copyright holder's exclusive right to publicly perform his/her work. This right is distinct from the ones that apply to distribution or reproduction. Yet at a conceptual level, all a radio station does is make a work available in a particular format -- a streamed transmission available to anyone with a receiver tuned to that frequency. IMHO, the main difference between that and p2p -- conceptually -- is that radio is a push technology and p2p is a pull technology. That's an important difference, though. The radio station decides which song to broadcast, but someone putting his/her entire music collection into a shared folder does not decide which songs will be downloaded.

The issue is not whether your hard drive is a material object. It's the word "fixed" which is the issue. If you have ever worked with p painting, photography, ceramics, or any other form in which the word "fix" has a use beyond "fixed that for ya," F'fixing" a work involves making it permanent.

A CD is fixed media. You can't change it, delete it, or replace the data with a different set of 1s and 0s.

The mp3s on my hard drive are not fixed. They are movable, transient, malleable, anddecidedly not permanent.

I agree with George, my old friend.

Beyond that however; the first line of the article was problematic in a country that PRESUMES INNOCENCE until proof of guilt is found. Read the first sentence
"There's been a lot of discussion in the blogs lately about court rulings that could complicate the RIAA's lawsuit campaign against illegal file-sharers.". Are the "file-sharers" illegal, are the files illegal ?

The apriori implication is prejudicial in an of itself.

Let's at least PLAY LIKE we have a fair and honest court system, nominally, even if it's not.

~Code

Re: are the file-sharers illegal, are the files -- I wasn't suggesting a conclusion about the merits of the RIAA's legal arguments, I was talking about the RIAA's mission. I'm willing to give the major labels the benefit of the doubt and say they're trying to stop people from doing something illegal, namely, downloading and uploading songs without the copyright owner's permission. There's plenty of good questions about the ways they've chosen to identify their targets and litigate these cases, but I still think their clear goal is to stem the illegal copying that's rampant online. That's why I think it's fair to call what the RIAA is doing a campaign against "illegal file-sharers," which distinguish it from a campaign against "all file-sharers" or "illegal disc bootleggers." I concede, though, that it would have been better to say "illegal file-sharing." And if you look at the imprecision of the lawsuits, you might also describe them as a campaign against people with broadband accounts that *might* have been used for illegal file-sharing.

The problem is that after 40,000 lawsuits and 5 years, not a single question has been answered, starting with the whole "fixed, material object" thing. What law created "illegal music"? How do you tell it apart from legal music? Is non-commercial sharing with no profit potential actually a violation of copyright? Or is it as baseless as ASCAP's argument in the 1920s that radio broadcasts constituted piracy?

In the Sony/Betamax case, there was a single defendant. Given a guarantee of no monetary damages, he admitted to all the activity in question and the two sides battled out the details of whether or not this was copyright infringement. Questions answered, problem solved.

Leaving all of these questions unanswered as long as possible enables the RIAA to keep collecting settlements. It's time we gave the victims the benefit of the doubt.

Mr. Ziemann, the RIAA would wholeheartedly agree with your last point. In its mind, its members are the victims. Their sales have plummeted as the amount of free downloading has exploded in the p2p era. We can argue about causation -- I've been sort of a denier on this point myself -- but the correlation is unmistakable.
The campaign has, in fact, generated some legal certainty. The DC Circuit limited the power of administrative subpoenas under the DMCA, which forced the RIAA to file John Doe lawsuits. And we're in the process of answering some other very interesting questions about how these claims must be filed (i.e., whether unknown defendants who share nothing but an ISP can be joined in a single lawsuit), the evidence required to prove infringement and the potential liability of uploaders (see this later post -- http://opinion.latimes.com/bitplayer/2008/04/more-on-the-ria.html).
We'll disagree about this, I'm sure, but I don't see a lot of doubt about the illegality of unauthorized file-sharing. Congress has already declared, in response to an early warez case, that it's a federal crime to copy or distribute more than $1,000 worth of copyrighted material without permission, no commercial intent required. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=487163. And at least two federal circuits have found no fair-use defense in file-sharing cases. See http://thefairuseblog.typepad.com/the_fair_use_blog/2007/06/file_sharing_an.html. Of course, the fair-use analysis has to be done on a case-by-case basis, so there will never be a single, comprehensive rule on that score. Still, I think copyright owners have a valid beef about file-sharing. There are billions of copies being made illegally every month. What the courts are doing now, thanks to the fact that a few cases are actually being litigated, is figuring out the right people to hold responsible for that. It may be that the labels are forced to shift from claims based on shared folders -- the presumptive sources of the illegal copies -- to those based on the illegal copies themselves. That's a harder task for the RIAA, but that doesn't mean it isn't the right thing to require. Again, see my later post on this topic -- http://opinion.latimes.com/bitplayer/2008/04/more-on-the-ria.html.
BTW, I don't see the point in your ASCAP example. One of the exclusive rights of copyright holders is the right to perform a work publicly. The music publishers represented by ASCAP *can* sue radio stations if they broadcast music without paying royalties. The stations have a compulsory right to pay the songs, but it's not free.

ASCAP's battle with radio in the 1920's is exactly the same battle the RIAA is conducting with file-sharing, every step of the way. There was no compulsory licensing. The law did not cover the new technology. Same story, different century, except it was much easier to identify the radio stations.

One case in the 1920s advanced to the Supreme Court on the basis of the record labels stamping "Not for Broadcast" on the discs, very similar to the current scenario in the case of the guy who was reselling used CDs on eBay with "Promotional Use -- Not For Resale" stickers on them. In the former case, the Supremes ruled that once you bought it, you could do whatever you wanted with it. There was a long, pointless legal battle before they ever got around to thinking about licensing.

We're still debating about "fixed, material object," about whether "making available" equals "distribution," whether it's the uploader or download responsible for an unauthorized copy, whether the IP address translates into a human committing a sepcific act, and all the other legal minutae which should have been hammered out years ago. And the next case that comes up starts right back at square one.

I'm certainly not arguing for a "fair use" defense, not sure where that came from. I'm a songwriter and musician. I share a lot of legal music, mostly my own. My basic complaint is simply that even if you want to follow the rules, it is virtually impossible to determine what they are, since the copyright law does not mention the internet, uploading, downloading, side-loading or file-sharing, or whether that mp3 on your flash drive is fixed. I'm not even sure if putting a new song on the net and offering it for free constitutes publishing.

There are a lot of assumptions floating around, but speculation is generally frowned upon in a court of law.

Ahh, OK, thanks for that bit of ASCAP history. I think we actually have a similar view on this overall, and I'll readily concede that too many issues that are central to these lawsuits have yet to be litigated far enough to settle them.