‘Making Available’ Theory Rehashed in P2P Trial Rehearing Briefs

The language of Congress is precise when it aims to ban an “offer,” as with a law concerning patent owners’ exclusive rights, said a brief by the Electronic Frontier Foundation, Public Knowledge, the U.S. Internet Industry Association and Computer and Communications Industry Association. Recent federal court decisions in Arizona and Massachusetts, as well as “leading copyright law commentators,” say actual transfer is required to infringe, the brief said. The “authorization” clause in the Copyright Act’s section 106 is intended to recognize secondary, not direct, liability, they said. The 9th Circuit’s oft-cited Napster ruling concerned only secondary liability for Napster, taking it as given that millions of users were illegally swapping files, they said.

Enshrining making-available would go beyond P2P sharing, the associations’ brief said. The labels’ litigation with XM over its recording devices, though settled, “threatens to blur the distinction between public performance and distribution,” and Google has been legally targeted for pulling up infringed images in search results, the brief said. The labels can’t “avoid the burden of proving their case” by showing actual transfer beyond that performed by their investigator, MediaSentry, said the brief. “Millions of Americans could be exposed to infringement liability without the plaintiff having incurred any damage.” The labels instead should compare defendants’ computers and CD collections, through “traditional discovery,” to build an infringement case, the brief said.

The “ordinary” meaning of “distribute” requires a “transfer of ownership” to another party, said a brief filed by 10 law professors from schools around the U.S. A broad interpretation of “distribute” would also undermine other provisions of the Copyright Act, the brief said: The exclusive right of public display “might become superfluous insofar as a public display necessarily ‘makes available’ the displayed copy to the public for viewing.” The professors dusted off the Grokster ruling, which said a party who induces others to infringe is liable “for the resulting acts of infringement by third parties,” not for inducement itself.

The MPAA went back to the first U.S. Supreme Court chief justice to argue that U.S.-recognized international law must control any interpretation of congressional action. The World Intellectual Property Organization’s so-called Internet treaties explicitly recognize that copyright holders have the exclusive right of “making available” their works to the public, MPAA’s brief said. The DMCA fully implemented the Internet treaties, with Congress, President Clinton, the Register of Copyrights and State Department agreeing that the “substance” of U.S. copyright law needed no change to comply. Only one court that rejected making-available considered the Internet treaties, the brief said. Seven U.S. free trade agreements also support the making-available right, said a brief by the Progress and Freedom Foundation’s Thomas Sydnor, a former copyright advisor for international relations at the Patent and Trademark Office.

Interestingly, the MPAA sidestepped whether “distribution” is synonymous in copyright law with “publication,” which includes “offering to distribute” works. “Distribute” alone is broad enough to encompass making- available, MPAA said, pointing to a P2P child-porn verdict. The MPAA noted the Supreme Court’s Tasini ruling in 2001, which involved authorization to post freelance writers’ articles to news databases (WID Nov 30 p7), to show that authorization can apply to direct infringement, the sole claim by plaintiffs in Tasini. The MPAA also tried to explain away the 8th U.S. Circuit Court of Appeals ruling in National Car Rental, the basis for Davis’s change of heart, a breach-of-contract software case. That ruling’s reference to “actual dissemination” was simply quoting a copyright treatise that distinguished performance from distribution rights, MPAA said.