Progress and Freedom Foundation Jammie Thomas Brief

There are other amicus briefs in the Thomas case besides the MPAA’s that take utterly baffling positions. One was filed by the Progress and Freedom Foundation. (As wikipedia notes, in admirable transparency PFF posts on its website the names of its corporate sponsors). Mr. Thomas Syndor of the PFF posted the group’s brief on their website he also has a column about further research he did. Here is the relevant quote from his column:


Before filing a proposed amicus brief in Thomas, l analyzed whether the Thomas Court was bound by National Car Rental to reject its own jury instruction and grant a new trial. My analysis indicated that the Court was not bound by National Car Rental.

But further research now suggests that I underestimated the implications of this analysis. As applied to the case cited by Thomas, this analysis shows only that National Car Rental is not a binding precedent. But when applied generally, it seems to show that a different judicial decision is a binding precedent--and one that would require all federal district and circuit courts to hold that the Copyright Act grants copyright owners a making-available right. Consequently, courts may be struggling needlessly with questions about whether the Copyright Act grants a making-available right. This paper seeks to explain why.

Analysis Indicates that National Car Rental Is Not Binding Precedent in Thomas: National Car Rental involved a claim that the Copyright Act preempted any state-law claim asserting that National had breeched a software-licensing agreement that prohibited use of the licensed software to process data for third parties. 991 F.2d at 427-28, 431. National argued that because this prohibition barred it from "distributing" the "functionality" of the licensed software to others, it was "equivalent" to the distribution right. Id. at 434. The Eight Circuit rejected this argument for three reasons:

First, National cites no authority in support of this proposition. Second, even with respect to computer software, the distribution right is only the right to distribute copies of the work. As Professor Nimmer has stated, "infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords." 2 Nimmer on Copyright § 8.11[A] at 8-124.1. Finally, courts have specifically held that copyright protection does not extend to the software's function. Thus, even if CA could be said to have alleged that National "distributed the functionality" of its program, such a claim would not protect a right equivalent to one of the exclusive rights in copyright.


The language that might bind the court in Thomas is the Nimmer quotation in the third sentence: If an infringement of the distribution right requires "actual dissemination," then unauthorized sharing or posting of a file on the Internet or a file-sharing network could not--in itself--infringe the distribution right. Were that the law, then the jury instruction in Thomas might be erroneous. The critical question is thus whether the Nimmer quote acts a precedent that binds lower courts. It might lack precedential value for either of two reasons.

I am utterly baffled by Mr. Thomas’s remarks for a number of reasons. Here are two: the National Car Rental court’s decision was based on the plain language of the statute, which limits the distribution right to distribution of copies, as the court noted. I had thought that conservatives and libertarians were supposed to be strict constructionists, folks who disliked “activist” (read liberal) judges. Courts are supposed to take the law as Congress wrote it and not “make law” by substituting Congress’s judgment for their own. The plain meaning rule is the check by which this occurs. Well, the plain meaning of the statute requires the distribution of copies, and copies are defined as physical objects. The statute could not possibly be clearer. That’s one reason the RIAA should lose: it has no proof there was ever a distribution of a physical object, a copy. Forget policy arguments; that’s what the statute says. Everything else (including many of the amicus briefs) are irrelevant.

The other baffling thing is the idea that anything Nimmer (or any treatise writer including myself ) could say be binding on a court. To try and gut an actual holding by a court that cites to and construes the precise words of the statute by claiming that the holding is a quote from a treatise writer is laughable. I should be so lucky!

But there is more. The PFF argues that it is the Supreme Court’s opinion in Tasini, not National Car Rental that governs because, it says, Tasini found (for some of the conduct) violation of the reproduction right and the distribution right. OK, but there was no question in Tasini that actual physical copies of the articles were distributed. Tasini has no relevance whatsoever to the issues in Thomas.