MPAA’s Brief and the Charming Betsy

The MPAA’s amicus brief in the Thomas P2P case in Minnesota has received a lot of publicity. What does the MPAA brief say? There are two parts to the brief. First, the MPAA takes the position that existing, domestic U.S. copyright law already incorporates the MPAA position. Second, and as an alternative, MPAA argues that domestic U.S. law should be construed to adopt its position because a failure to do so will place the U.S. in conflict with its supposed international obligations. All parts of the MPAA’s arguments are wrong: existing U.S. law rejects the MPAA position, international agreements do not adopt the MPAA position, and even if they did, U.S. law cannot be changed by the courts to make it fit such international obligations.

It is telling that the MPAA leads with its international arguments. One usually leads with what you believe to be your strongest argument. The converse of this is that you downplay your weakest argument. In this case, the MPAA must regard its construction of domestic law as its weakest, and is therefore asking the court to effectively enact its view of what the law should be, but isn’t. Separation of powers appears to be as outmoded as the threshold requirement that copyright owners prove infringement.

The MPAA’s international argument is based on two poles: first, the 1996 WIPO treaties, which do mandate a making available right, also mandate the MPAA’s interpretation of that right. No evidence of this is presented. Where in the treaties does it mandate that countries dispense with the requirement – which has existed from the beginning of copyright in the U.S. – that the copyright owner prove one of its rights has been violated? The MPAA declares that “A violation of the making available right does not require that copies were actually transferred to particular individuals,” Brief page 7, but supplies no support for this. There is simply no support for the position that countries, in implementing a making available right, must dispense with any evidence that copies were obtained by others. Countries are free to require such proof.

It is the nature of international agreements that they set forth broad concepts, leaving it up to national legislatures to fill in the details consistent with their local laws. U.S. law has long required actual distribution to violate the distribution right. If such a radical change was to be made, it could only have been made by Congress. The U.S. Congress was assured that no changes were necessary to adhere; in none of those assurances was Congress told that the treaties would dispense with the requirement of proving an actual distribution occurred in order to violate the making available right. MPAA’s position, in short, is that the making available right is synonymous with no proof of an actual distribution, but it comes up short in proving that was the case. Indeed, the Hotaling case, much relied on by the industry, has been roundly criticized by copyright scholars and by courts. If the MPAA’s view of U.S. law were accurate, Hotaling would have been non-controversial.

Because countries are free to require such proof, the MPAA’s argument that U.S. law must be construed (read: rewritten) to dispense with such proof also fails. But even here, the MPAA brief overstates its only authority, Murray v. The Schooner Charming Betsy, 6 U.S. 64, 2 L. Ed. 208, 1804 WL 1103 (1804). In The Charming Betsy, the Supreme Court, per Chief Justice John Marshall, held that “a statute ought never to be construed to violate the law of nations, if any other possible constriction remains.” The opinion only applies when a statute is ambiguous. It has no application when a statute is clear but conflicts with international norms. The Charming Betsy is merely a canon of construction; it is not a substantive legal doctrine. This all the more so because the WIPO treaties are not self-executing.

The MPPA and RIAA approach is to try and get through the courts what they would be unable to get through Congress because of the backlash and opposition. Let’s hope the courts resist the temptation to be legislators.