"You keep using that word. I do not think it means what you think it means."
Another note on the EFF amicus argument in Barker (which is apparently an endless source of fascination -- tie a wad of shiny foil to it and it'll entertain me all day). The authors continually refer to the process by which files are send from one Kazaa user to another as a "transmission." An obvious reason to favor the term is that, under EFF's reasoning, it contrasts with a "distribution," and the whole point of the brief is to argue that sending files between Kazaaa users is not a "distribution." But it's not exactly clear that this process is a "transmission," or whether being a transmission necessarily helps EFF's argument. "To transmit" is defined in Section 101 (and it is a pet peeve of mine that Section 101 is so huge, yet has no labelling for referring to specific definitions):
To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.
Does the stuff happening when Kazaa sends another user an MP3 (or other file meet this definition? In some sense, sure. "Images or sounds" are "received" somewhere else. But they are buried in an MP3 file. In general, the downloader can't actually see or hear those images or sounds until the file is finished downloading, and opened with a suitable application. Kazaa transfers may be "transmissions," but then, so would Amazon.com's distributions of books and CDs to customers via UPS (which, after all, result in "images or sounds being received beyond the place from which they are sent." If this is what "transmission" means, then it isn't exclusive of "distribution" -- rather, a "transmission" would encompass not only the types of broadcast models we generally thing of when we think "transmission" (e.g., radio, TV, live-streaming over the net), but also plain old distribution.
Other parts of the Copyright Act also indicate that a "transmission" can also be "distribution" (and thus, could violate the "distribution" right under Sec. 106) In defining what "fixed" means (and to enjoy protection, a work must be "fixed" in a tangible medium), Section 101 notes that
A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
When something is "fixed ina tangible medium," the thing in which the work is fixed is a "copy" or "phonorecord." A reasonable reading of this definition suggests that if one were to live-stream a musical performance over the net in such a way that an MP3 of the performance ended up on another user's computer "simultaneously" with the performance, the performance would be sufficiently "fixed" for copyright purposes. (Kazaa doesn't do this, since it just does straight-up transfers of files, but some streaming technologies, such as Quicktime, can be set to allow this kind of arrangement.) And that means it could also be a "distribut[ion] ... in copies or phonorecords."
The idea that copyrighted works can be "distributed" electronically over the Internet jibes with the legislative history of the law that created a "digital peformance right" for audio in 1995:
Section 114(d)(4). Rights not otherwise limited
Under existing principles of copyright law, the transmission or other communication to the public of a musical work constitutes a public performance of that musical work. In addition, the digital transmission of a sound recording that results in the reproduction by or for the transmission recipient of a phonorecord of that sound recording implicates the exclusive rights to reproduce and distribute the sound recording and the musical work embodied therein. New technological uses of copyrighted sound recordings are arising which require an affirmation of existing copyright principles and application of those principles to the digital transmission of sound recordings, to encourage the creation of and protect rights in those sound recordings and the musical works they contain.
This subsection makes clear, in paragraph (4)(A), the Committee's intent that except as explicitly provided in section 114, nothing in that section limits the exclusive right to perform a sound recording publicly by means of a digital audio transmission. Paragraph (4)(B) also makes clear that section 114 does not in any way limit the exclusive right to publicly perform a musical work under section 106(4); the exclusive rights in sound recordings and musical works under sections 106(1) and 106(3); and any other rights and remedies available under title 17. Similarly, the bill does not affect any existing limitation under sections 107-113, sections 116-120, or the unamended portions of sections 114 and 115.
Paragraph (4)(C) ensures that where an activity implicates a sound recording copyright owner's rights under both section 106(6) and some other clause of section 106, the limitations contained in section 114 shall not be construed to limit or impair in any way any other rights the copyright owner may have, or any other exemptions to which users may be entitled, with respect to the particular activity. For example, where a digital audio transmission is a digital phonorecord delivery as well as a public performance of a sound recording, the fact that the public performance may be exempt from liability under section 114(d)(1) or subject to statutory licensing under section 114(f) does not in any way limit or impair the sound recording copyright owner's rights and remedies under section 106(3) against the transmitter for the distribution of a phonorecord of the sound recording. As another example, where an interactive digital audio transmission constitutes a distribution of a phonorecord as well as a public performance of a sound recording, the fact that the transmitting entity has obtained a license to perform the sound recording does not in any way limit or affect the entity's obligation to obtain a license to distribute phonorecords of the sound recording. Similarly, the bill does not affect any existing limitation under sections 107-113, sections 116-120, or the unamended portions of sections 114 and 115.
From S.Rep. 104-128 (Senate Committee report on the law adding a "digital audio transmission right" at Sec. 106(6), 1995). This legislative history fairly plainly indicates that Congress recognized that a Kazaa-like arrangement -- where a "transmission or other communication" directly results a copy being made at the receiver end -- implicates the distribution right. And as for this legislative history, EFF would rather not get into it -- which is one reason they assert that the "plain statutory language" dictates that Kazaa doesn't implicate the distribution right.