In the modern digital age, one of the key copyright law questions concerns whether the U.S. Copyright Act sets forth what is known in copyright circles as the “making available right.” The question goes to what is necessary before one has distributed a copyrighted work. Is merely making the work available to others to access, and potentially copy, sufficient to constitute an onward distribution of the copyrighted work? According to the lobbying arms of the movie and music industries, the MPAA and RIAA, the answer to that question is yes. Others, including organizations that take a more restrictive view of copyright law’s reach, such as the Electronic Frontier Foundation, as well as some professors, argue that the current Copyright Act simply does not include the making available right.
This is not an obscure theoretical debate, but one of tremendous practical significance. The bottom line is that under the interpretation of copyright law advanced by the MPAA and RIAA, users of peer-to-peer file sharing networks that make copyrighted movies or songs available to others to download can be found liable even absent any proof that the movies or songs were downloaded by other users. Because copyright law allows for statutory damages, consumers that engage in file-sharing face potentially crippling damage awards for distributing copyrighted works via peer-to-peer networks.
The question of whether the Copyright Act includes a making available right has already arisen in several cases. The leading precedent in favor of the making available right is a case from the Fourth Circuit, Hotaling v. Churck of Jesus Christ of Latter Day Saints, 118 F.3d 199 (4th Cir. 1997). That case stemmed not from unauthorized file sharing on the Internet, but from the practice of the LDS Church of making unauthorized copies of copyrighted material available in microfiche form for viewing by library patrons. As the Fourth Circuit noted, the legal issue hinged on Section 106(3) of the Copyright Act, which grants a copyright holder the exclusive right “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.” Hotaling held that an offer to distribute a copyrighted work by making it available to the public was sufficient to come within the ambit of this section.
Although some courts have taken the Hotaling view that the Copyright Act grants a copyright holder an exclusive making available right, the trend is clearly in favor of rejecting that view, although courts have been far from uniform in their statutory analysis. One notable case is an opinion by a district court in Arizona, Atlantic Recording v. Howell. There the District Court surveyed the development of case law bearing on the making available right, and reached the conclusion that Hotaling was a distinctly minority view among the courts to have considered the matter. The Howell court took note that a number of district courts had concluded that the Hotaling court’s acceptance of the making available theory lacked statutory grounding, and it ultimately agreed:
Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.
Hotaling, as well as several cases it cited, involved the question of liability for Internet file-sharing. The most famous case in this area is no doubt the RIAA’s seemingly interminable case against a Minnesota woman named Jammie Thomas-Rasset. The case is known as the first lawsuit brought by the RIAA against an individual for file-sharing copyright infringements to reach a jury trial. The first trial in the case occurred in 2007 and the case centered on 24 songs that Thomas-Rasset was alleged to have made available on Kazaa. The studios prevailed, and were awarded $222,000 in statutory damages. However, following the trial, the judge in the case, Michael Davis, concluded that his jury instructions had erroneously indicated that the Copyright Act encompasses a making available right, and the case was retried again in 2009. At the second trial, Thomas-Rasset was again found liable, and ordered by the jury to pay an astounding $1.92 million in damages to the record companies, Judge Davis reduced to $54,000. The RIAA refused to accept the reduced damage award, and a third trial on damages in 2010 resulted in an award of $1.5 million, which Judge Davis again reduced to $54,000 this past July.
Last week, the RIAA filed an appeal with the Eighth Circuit. The RIAA of course argues that Judge Davis erred in reducing the statutory damage award, but it also continues its argument that there is a making available right in the Copyright Act. A case that both sides will address in their arguments in the appellate stage of the case is National Car Rental System, Inc. v. Computer Associates International, Inc., 991 F.2d 426 (8th Cir. 1993). (Judge Davis in fact was not made aware of this case when he issued his original jury instructions, which intimated that there was a making available right.) In that case, the Eighth Circuit stated that “even with respect to computer software, the distribution right is only the right to distribute copies of the work” and that “actual dissemination” is a necessary component of distribution. The RIAA will argue that this was dicta, but the case heavily favors Thomas on the making available issue even if the statement was dicta.
The RIAA and MPAA argue that the “plain meaning” of the Copyright Act is that there is a making available right, while Thomas and her amici argue that the opposite is true–that the plain meaning of Section 106(3) is that distribution must involve actual dissemination, as the Eighth Circuit previously suggested. Judge Davis, when the issue was before him on the jury instructions, agreed with Thomas. He noted that the statutory definition did not expressly state that an offer to distribute was included within its reach. He further cited dictionary definitions to reach the conclusion that distribution as the word is used in everyday language “necessarily entails a transfer of ownership or possession from one person to another.”
One argument that the RIAA and MPAA continue to press is that several international treaties to which the U.S. is a signatory include a making available right, and judicial interpretation of the Copyright Act should take this into account. The legal doctrine known as the “Charming Betsy doctrine” instructs courts to interpret statutes in accord with treaties when a tenable interpretation would achieve this result. But insofar as courts feel that the plain meaning of a statute is inconsistent with a treaty, they will not rewrite it to conform to the treaty. Both the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty include a making available right. The U.S. is also a signatory to bilaterial treaties that include the making available right.
Interestingly, the Justice Department’s intellectual property division is not prosecuting persons who merely make available copyrighted works for criminal copyright violations. As a former LL.M. student I took a course on international intellectual property law, and we had a guest speaker from the Justice Department who confirmed that they would not be prosecuting for this due to a number of district court opinions in civil cases that rejected the RIAA/MPAA making available argument.
I will continue to report in this space on developments in this area, including the Eighth Circuit’s take on whether the Copyright Act includes a making available right.