In a routine suit against downloading via KaZaA, and in an opinion that focused almost entirely on the consequences of spoilation of evidence, Judge Cynthia Rufe of the Eastern District of Pennsylvania, in Motown Records Co. v. Theresa DePietro, Civ. No. 04-CV-2246 (Feb. 16, 2007)(HT to Paul Fakler), tossed off these remarks (p. 7):
A plaintiff claiming infringement of the exclusive-distribution right can establish infringement by proof of actual distribution or by proof of offers to distribute, that is proof that the defendant "made available" the copyrighted work. [38]
[38]. While neither the United States Supreme Court nor the Third Circuit has confirmed a copyright holder's exclusive right to make the work available, the Court is convinced that 17 U.S.C. § 106 encompasses such a right based on its reading of the statute, the important decision in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Circuit 2001), and the opinion offered by the Register of Copyrights, Marybeth Peters, in a letter to Congressional hearings on piracy of intellectual property on peer-to-peer networks, Letter from Marybeth Peters, Register of Copyrights, to Rep. Howard Berman, from the 28th Dist. of Cal. (Sept. 25, 2002)("[M]aking [a work] available for other users of [a] peer to peer network to download ... constitutes an infringement of the exclusive distribution right, as well as the reproduction right").
Ray Beckerman has a wrap up of some recent cases here in a January 22, 2007 article in the Hollywood Reporter. Professor Jane Ginsburg has an article about the issue from an international perspective here.
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I don't believe you got the entire quote:
While neither the United States Supreme Court nor the Third Circuit Court of Appeals has confirmed a
copyright holder’s exclusive right to make the work available, the Court is convinced that 17 U.S.C. § 106
encompasses such a right based on its reading of the statute, the important decision in A&M Records, Inc. v.
Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), and the opinion offered by the Register of Copyrights, Marybeth
Peters, in a letter related to Congressional hearings on piracy of intellectual property on peer-to-peer networks, Letter
from Marybeth Peters, Register of Copyrights, to Rep. Howard L. Berman, Rep. from the 28th Dist. of Cal. (Sept. 25,
2002) (“[M]aking [a work] available for other users of [a] peer to peer network to download . . . constitutes an
infringement of the exclusive distribution right, as well as the production right.”).
This issue also came up in the Interscope v. Duty case. http://blog.ericgoldman.org/archives/2006/06/music_file_in_p.htm Eric.
Fixed, thanks. I had already corrected the Court's "production" right to "reproduction" right.
I guess that I'm distributing a work when I let a friend come over to my house to read or watch it. Public libraries are equally culpable when they let people borrow a book, or just as bad, read the book in the library. Sheesh! Napster and Marybeth P said nothing of the kind.
Deference to the Register of Copyright's opinion here is an abuse of discretion.
The Copyright Office's delegated responsibility and competence is in the administration of copyright registrations. It is not, in any sense, competent to judge copyright infringement. The Register of Copyrights is not delegated power to regulate the bounds of copyright infringement. Ms. Peter's opinion should be given no more weight in a judicial proceeding than the opinion of any other ordinary, non-party citizen.
Ms Peters' opinion on a matter not delegated to the Register by statute should be given even less weight than those of a member of the public because, despite her personal integrity, the Register is subjected to intense political pressure by lobbyist and Congressional committees. This particular statement by the Register is obviously determined by her constituents and was made long enough ago that her current understanding of P2P distribution and how it actually works might result in a completely different "opinion" on her part.
Ms Peters' opinion on a matter not delegated to the Register by statute should be given even less weight than those of a member of the public because, despite her personal integrity, the Register is subjected to intense political pressure by lobbyist and Congressional committees. This particular statement by the Register is obviously determined by her constituents and was made long enough ago that her current understanding of P2P distribution and how it actually works might result in a completely different "opinion" on her part.
17 U.S.C. § 701(b) shows that Congress, in drafting the Copyright Act, knew how to write a statute distinguishing advice to Congress from “information and assistance” given to the Judiciary. The Register of Copyright's opinion on the interpretation of § 106, given in an official letter to a representatative, clearly is advice. The Register of Copyright's advisory opinion should have no weight at all in an Article III proceeding.
In a few years it will be determined that the copyright holder has the exclusive right to possess copies whilst simultaneously enjoying access to equipment sufficient to make these copies available.
Thus owning a CD whilst enjoying access to a CD burner will constitute an infringement.
After that it's a very small step to: "Possession of a copyrighted work without authorisation constitutes copyright infringement".
And then an even smaller step to:
"Intellectual Property is Theft".
And then the anal retentive IP maximalists disappear up their own backsides...
I think it's important to take note that the DePietro case involved a pro se defendant, so the "making available" issue was never properly briefed, as evidenced by the Court's reliance on dictum from the 9th Circuit's Napster case, and apparent ignorance of Judge Patel's later decision in Napster indicating that there is no "making available" claim.
The case to watch is, of course, Elektra v. Barker, where the various amici curiae, and even the U.S. Department of Justice, all had a chance to give their input, and where Judge Karas has indicated that he will definitely not "punt" on the "making available" argument.
We now have a transcript of the oral argument in Barker online here (pdf). Note Judge Karas's sharp questioning of the RIAA lawyer, indicating that there's nothing in the Copyright Act to suggest that "making available" is a claim, and debunking the RIAA's arguments as to 'authorizing', as to WIPO, and as to administrative writings of the Copyright Office.
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