DoJ entered another file-sharing suit to restate its view that th...

industry group. DoJ also asked the U.S. Dist. Court, Abilene, Tex., if it could weigh in on the “making available” issue in file-sharing, if the court addresses the subject in Fonovisa v. Alvarez. DoJ made the same points in a recent file-sharing case, Elektra v. Barker in U.S. Dist. Court, N.Y., in that case filing only after an amicus brief contested the validity of applying the distribution right to digital files as opposed to physical media. The provision is crucial to DoJ criminal cases (WID April 25 p3). DoJ said the Act’s “material object” language meant to set the “intangible legal right in the copyright itself” apart from the “physical embodiment of that work” in various media; common law links the concepts, DoJ said. The “making available” argument -- which says copyrighted files’ presence in a shared folder is infringement -- implicates World Intellectual Property Organization treaties and a free trade agreement, DoJ said. Ray Beckerman of blog Recording Industry vs. the People said it seems in Fonovisa that “RIAA and the DoJ are working together.” Elektra, in which the Electronic Frontier Foundation filed the precipitating amicus brief, had a far higher profile than Fonovisa, Beckerman said. “How would the DoJ have even known of the existence of the [Fonovisa] case” without an RIAA tip? he said in an interview. DoJ usually files statements of interest when a court tells it a party has challenged a law’s constitutionality, and DoJ has a “strong opinion” that the law is constitutional, Beckerman said. The agency doesn’t intervene in civil cases involving private litigants when a civil statute’s meaning, rather than its constitutionality, is in question, he added. A DoJ spokesman told us the agency would have no comment beyond its filing in Fonovisa. An RIAA spokeswoman told us DoJ intervened in Fonovisa “without any suggestion or communication from us that it was in the interest of the United States to file a brief.”