The recent making available cases

There have been three opinions in six weeks on the suits brought by RIAA in which the issue of the alleged making available right as well as infringement of the distribution right have been raised. They are not the first opinions, nor will they be the last, but they are interesting in their own right, and are noteworthy because the judges involved took the time to address the issues seriously and thoughtfully.

The first was Atlantic Recording Corp. v. Brennan, 534 F. Supp.2d 278 (D. Conn. February 13, 2008), a short opinion by Judge Janet Bond Arterton on plaintiff’s motion for a default judgment, an unusual procedural posture. Judge Atherton declined to grant the motion because she thought defendant might have a valid defense that there needs to be an actual distribution of a copy to violate the distribution right,” and that as pled plaintiff’s claim might not be able to satisfy that requirement.

The second opinion is Elektra Entertainment Group, Inc. v. Denise (sic) Barker, Case No. 05-CV-7340 (S.D.N.Y. March 31), an opinion by Judge Kenneth Karas. The opinion was issued on a Rule 12(b)(6) motion to dismiss for failure to state a claim; the issue therefore was whether the claim satisfied the Rule 8 pleading requirements. The court first held that the complaint adequately alleged defendant had used a P2P network, and that plaintiff had alleged, “Defendant did distribute (and/or made available) Plaintiff’s protected works. This is sufficient under Rule 8.” Nor did Defendant seem to contest that point; rather she argued that she was not liable “merely by making the copyrighted recordings available. In particular, Defendant argues that Plaintiffs cannot establish a violation of their distribution rights without alleging an actual transfer of Plaintiff’s works by Defendant.”

The court went astray in my opinion in its interpretation of “distribute” in Section 106(3), which it held to be synonymous with the term “publication.” The term “publication” is defined in relevant part as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” But this doesn’t mean the logic flows the opposite direction, that a distribution is also a publication. But since the court held it did, the court was also stuck with holding that the offer to distribute a phonorecord is also a distribution, and the court’s discomfort with this obvious anomaly led it to place practical limits on its holdings, limits that don’t mesh with equation of distribution of publication, including finding that plaintiffs had not adequately stated a claim of further distribution, i.e., that plaintiffs had not adequately made out a making available. The court’s ruling nevertheless leaves open the possibility that having a work in a shared folder without authorization for it being there might be infringing, even if no one ever downloads it from that file.

Blessedly, the court rejected the assertion of a separate authorization right. The court did not reach EFF's argument that the distribution right does not ever apply to digital transmissions.


The final decision, also handed down on March 31st, is London-Sire v. Does, by Judge Nancy Gertner of the U.S. District Court of Massachusetts. Her opinion has wrinkles not found in the first two, particularly a motion to quash subpoenas to learn defendants’ identities, an issue I will pass over. Of great interest in Judge Gertner’s rejection of the distribution versus publication equation adopted by Judge Karas. She held that “the defendants cannot be liable for violating the plaintiff’s distribution right unless a ‘distribution’ actually occurred. This of course merely shifts the inquiry into what constitutes a distribution, and here I respectfully think the court confused the reproduction and distribution rights. Certainly it is true as the court held that electronic files are material objects when fixed in a tangible medium of expression, like stored on someone’s computer. But this doesn’t mean that the transmission of a file is either a distribution or a distribution of a copy, as the court thought (see pages 36-37).

The court recognized that the reproduction and distribution rights are different, but I fail to see how that recognition played out in the court’s decision: how is the transmission of a work the distribution of a copy? I have no problem with holding the first person liable for making an unauthorized copy, nor with holding the second person liable for making one too via plaintiff’s transmission, nor do I have any problem with holding the second person liable for making an unauthorized copy via plaintiff’s transmission even if plaintiff’s copy was lawful. And I understand why copyright owners want to stop people from putting works in share folders so that they whole world can have access to and therefore make unauthorized copies. My issue is that they can still sue the person who retrieves the copy (and the first person if his or her copy was unlawful); but the law shouldn’t be mucked up to go after the first person where the first person possesses a lawful copy. The consequences for such a making available right go well beyond the facts of these cases.

The only thing clear from these cases is that the issues will be with us for a long time.