RE: Distribution right vs. "make available for download"

From: Grierson, Kevin <kgrierson[_at_]wilsav.com>
Date: Tue, 17 May 2005 14:59:59 -0400

I think that you've misinterpreted Judge Patel's order. In her May 11 ruling, Patel did not rule on whether 106(3) of the copyright act forbids making copyrighted works available for download; she merely stated that the legislative history of the ART Act, and the language of the ART Act, could not serve as a basis for construing 106(3), and denied the plaintiff's request to file a supplemental brief explaining that argument. The interpretation of 106(3) itself is before the court on the defendant's motion for summary judgment, and Patel has NOT ruled on that issue yet.  

Kevin Grierson
Kevin W. Grierson, Esq.
Registered Patent Attorney
Intellectual Property Group

Willcox & Savage, P.C.
One Commercial Place, Ste. 1800
Norfolk, Virginia 23510

kgrierson[_at_]wilsav.com <mailto:kgrierson[_at_]wilsav.com> ph: 757/628-5603 fx: 757/628-5566
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---

        From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Dan Ballard

	Sent: Tuesday, May 17, 2005 1:30 PM
	To: CNI-COPYRIGHT -- Copyright & Intellectual Property
	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/ <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.         

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Willcox & Savage P.C. Received on Tue May 17 2005 - 22:59:59 GMT