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

I can't read as much into this decision as Dan does, but I think there's more here than some posts have recognized. The most troubling prospect is that Patel got it half-right.

It seems clear Patel sees "making available for distribution on a computer network" as something other than "distribution." The relevance to Napster is obvious -- Napster wasn't distributing; it didn't have the works to distribute; it only maintained an index. In the context of true P2P, it can be read to suggest that making the work available as a shared file doesn't prove distribution. I'm not sure how that is different from a street vendor with a cart-full of pirated DVDs -- you can't nail him for distribution until he makes a sale. On the other hand, you can nail the vendor for possession of contraband, while the work "made available" by P2P is an authorized copy until proven otherwise. So, it's an important ruling for pleading purposes, and more important in terms of the availability of any remedy at all when you can't prove unauthorized reproduction ("I didn't make no copies") or unauthorized distribution ("If I could sell that crap, it wouldn't be on sale for $29.95").

I don't see how you jump from the premise that the copyright owner is allowed to copy his own work to the conclusion that a complaint must allege that "the file sharer actually distributed a copyrighted work to someone other than the copyright owner." Are you sure that you can't be liable for unauthorized distribution of an authorized copy? More practically, the street vendors aren't getting busted on sales to copyright owners. They get busted on sales to investigators. MPAA and RIAA have an army of them.

The troubling part of Patel's decision is her reading of the Art Act, which prohibits: "distribution of a work ... by making it available on a computer network...." (I don't think the ellipses change the meaning, but tell me I'm wrong) Patel reads that to mean "distribution" and "making it available" are separate elements, so it can't help the record companies even if it does have a bearing on the construction of 106(3) -- which it doesn't, she insists. I think maybe it does.

Patel rules that Congress revealed no intention in the ART Act to "clarify" sec. 106(3). But if you don't construe "distribution" in the ART Act as identical to "distribution" under the Copyright Act, then how are you going to construe it? On the assumption that Congress was starting over? Of course Congress wasn't "clarifying" the meaning of 106(3) -- it was assuming the meaning of 106(3) because they know what they meant when they enacted it. If you have to reconcile ART Act "distribution" with Copyright Act "distribution," then I don't care whether it's one element or two -- it either clarifies or it assumes that "making it available on a computer network" is a KIND of "distribution."

The industry argued that it wouldn't make sense for the Copyright Act to allow infringement that the ART Act will send you to jail for. Huh? It may be the only way to get thrown in jail (hence two elements), but so what? The ART Act says that if you get your hands on a Hollywood pre-release, you can take care of your friends but don't flush the box-office -- use FedEx and you can stay out of jail. Makes sense to me.

What doesn't make sense is that Congress added an element to the ART Act offense because they wanted to make it harder to prove. Maybe they were concerned about the right to FedEx pre-release copies of Hollywood movies ordered from a website; or the right to fulfill phone orders by email attachment. Or maybe they wanted to encourage competition by criminalizing the vertical integration of online marketing and distribution of pirated pre-releases -- allowing you to make it available on the net or distribute it on the net, but not both. Reading the ART Act provision as requiring two elements just doesn't make sense. You couldn't even get an injunction to close the door before you could prove that the horse was, more probably than not, out of the barn. The industry's reconciliation of the Copyright Act and the ART Act seems more plausible -- the provision targets file-sharing as a kind of distribution and gets them damages based on the shared file directory by proving availability with one download.

I'm not committed. Talk me out of it.

John Noble

At 1:30 PM -0400 5/17/05, Dan Ballard wrote:
>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.
>
>
Received on Thu May 19 2005 - 02:00:41 GMT