Dan --- Perhaps I misread the decision, but I do not believe that this is
what Judge Patel has held, or that this particular decision is noteworthy.
(If she had so held, it would be noteworthy indeed!).
By way of background, it appears that Napster (I'll refer to all of the defendants simply as Napster) has filed a motion for summary judgment on a number of grounds. One of these is that it is not an infringement of the Section 106(3) distribution right to merely maintain an index of downloadable files. The plaintiffs (I'll refer to all of them simply as the Record Companies) filed a memorandum/brief arguing why Napster is not entitled to summary judgment. One of the arguments in that brief is that Section 106(3) does prohibit maintaining an index of downloadable files.
After Congress passed the ART Act, the Record Companies filed another motion, requesting permission to file a supplemental brief. In this supplemental brief, the record companies argue that the ART Act language supports their argument that maintaining the index of downloadable files does infringe the distribution right under Section 106(3).
I read Judge Patel's 5/12 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner's distribution right.
John E. Ottaviani
Edwards & Angell, LLP
2800 Financial Plaza
Providence, RI 02903 USA
voice 401.276.6405 fax 888.325.9049
e-mail jottaviani[_at_]edwardsangell.com
www.EdwardsAngell.com
"Dan Ballard" <dballard[_at_]mhalaw.com>
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05/17/2005 01:30 PM
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Subject: [CNI-(C)] Distribution right vs. "make available for download"
The judge who has been handling the Napster cases, Judge Marilyn Patel,
yesterday rejected the record labels' claim that a copyright holders'
exclusive right to distribute a work includes the right to make the work
available for download. Patel held that copyright law, including the very
recently passed ART Act, does not grant copyright owners' the exclusive
right to make their works available for download. Her decision is at <http://patelorder.notlong.com/>
In short, "making available for download" is not distribution and is not,
therefore, an infringment of a copyright owner's distribution right.
Because the labels litigated the issue themselves, the decision may have
force in their other cases as well.
This is a noteworthy decision. It is a set-back in the content industries
lobbying efforts to import (some would say through the back door) a "make
available for download" right into the enumerated bundle of rights the law
grants to copyright owners. They have already had some success, however,
as the exclusive "right" to make works available for download has found
its way into various international trade treaties.
The decision will also likely complicate the thousands of infringement
suits the labels and studios have filed throughout the country. The
labels and studios allege in those suits that file sharers infringe the
exclusive rights of distribution and reproduction by (1) actually
distributing the copyrighted works and (2) by making those works available
for download.
But if "making available for download" is not a violation of the
distribution right, then the labels and studios must now rely on
allegations of actual distribution to maintain the suits currently pending
and to initiate the next round of suits. Because it is not an
infringement when a copyright owner reproduces its own work, the labels
and studios must now allege that, without authorization, the file sharer
actually distributed a copyrighted work to someone other than the copyright owner. Their evidence of their own p2p reproductions cannot now, it seems to me,
form the basis for their allegations of infringement by distribution. If
the meta data of a file they download from a file sharer, however, matches
the meta data of an unauthorized reproduction in their database, they can
still claim, validly I think, a good faith belief that the file sharer has
infringed their reproduction right. This means they have to do a lot more
grudge work though befoe filing suit and they may have to amend the
complaints already on file.
All in all, an interesting issue. I'm of two minds on whether "making
available for download" is a distribution. The concept of "distribution"
in the digital world is certainly different - it's far easier and more
threatening to the copyright monopoly - than in the tangible world so
stretching "distribution" to include making available for download seems
reasonable. On the other hand, making available for download is often a
passive act done without thought or knowledge that the work is being made
available. Is it beneficial, or even reasonable, for a society that
values the free exchange of ideas to demand that people ensure that no one
accesses their computers while they are on-line? Maybe. I still vote,
though, for the rough justice of an alternative compensation system for
authors in exchange for the unlimited distibution and reproduction of
digital works.
Boston, Ft. Lauderdale, Hartford, New York, Providence, Short Hills NJ, Stamford, West Palm Beach, Wilmington, London (Representative office)
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