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

I suspect that the true implications of the ruling lie somewhere in the middle. While I agree that the ruling itself is not so broad as to say that making works available for download does not infringe the distribution right, I would nevertheless conclude that making works available for download indeed does not infringe the distribution right. The reason for my conclusion is more fully explained in the amicus brief filed by the Video Software Dealers Association in the Grokster case. See http://interactionlaw.com/documentos/ MGM_v_Grokster_VSDA_Amicus.pdf

In a nutshell, the Copyright Act limits the exclusive right of distribution to the distribution of "copies" and "phonorecords," both of which are, by definition, limited to tangible objects. Making available for download may, nevertheless, constitute contributory infringement of the right of reproduction if done with the intent to facilitate an infringing reproduction. That's just basic no-frills copyright law.

John

John T. Mitchell
http://interactionlaw.com
1-202-415-9213

On May 17, 2005, at 2:59 PM, Grierson, Kevin wrote:

> 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.
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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/>
>
> 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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Received on Wed May 18 2005 - 01:30:01 GMT