Thursday, April 03, 2008

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.


Anonymous said...

How do you think these cases will play out against the line of cases that appear to find a violation of the distribution right by making works available? I happen to represent a company that licenses copyrighted materials from third parties and makes it available to clients under a limited license grant via web portal. Other than terms of use, we don't have much control over what our clients do with the materials, and it would be difficult to proactively stop them from making an infringing use. While we protect ourselves via contract, I have been watching the development of this issue closely and would very much like to know your thoughts on how this plays out.

raybeckerman said...

It's interesting to me that the one decision where the judge did it all on her own, Atlantic v. Brennan, is the only one that just plain got it right.

And in that case, watch out, because the RIAA is now looking for, and will probably get, a private audience with Judge Arterton, so that they can try to confuse her too.

We should bear in mind that important legal questions are being addressed in these cases, and there is virtually no ability of a defendant to fight back.

The companies who are going to be harmed by the bad law the RIAA is trying to convince the courts to adopt should be financing the defense of these penniless defendants.

StephenH said...

I am not a lawyer, but I have been following this whole RIAA and P2P issue for over nine years on a daily basis during my free time.

I personally beleive that the London-Sire decision and others showing that "making available" does not nessecarly constitute infringement. I beleive that the RIAA should have the burden to prove the following for a defendant to be found liable:

A) The file was actually copied

B) The file in question either was pirated or the downloader does not have a license.

C) That this was not a case of "fair use" copying

D) That the person alleged actually downloaded or pirated the work (not just an IP address log, but that actual person).

I beleive that if the judge applied this test, and required RIAA to present a prima facie case of copyright infringement, this whole P2P anti-piracy campaign would be over.

On another note, I hope the Andersen v Atlantic Recording Corp et al class action is allowed to go through and that Tanya Andersen wins. The claims in this case (racketeering, fraud, invasion of privacy, electronic trespass, computer fraud and abuse, trespass to chatels, abuse of the legal process, outrage, use of an unlicensed investigator, and others) are very serious. I beleive that if RIAA, the record labels, MediaSentry, or Settlement Support Center are found liable one one or more of them, it could end the RIAAs campaign forever, as it will prove that Spy Bots don't prove ones identity, and that they are liable for innocent users. I feel at the very least that RIAA will have to stop its "guilty until proven innocent" tactics, and seriously evaluate any serious claim of innocense it recieves.

CopyOwner said...

I was too lazy to blog my own direct observations on those three cases, but I liked yours enough to blog my Observations on Professor Patry’s making available observations.

In my observations on your observations, I include a challenge for you: "I wonder what Professor Patry’s take is on the interplay between the Section 106(3) distribution right of the copyright owner and the Section 109(a) re-distribution right of the owner of a lawfully made copy – the entitlement to re-distribute the copy or phonorecord without the consent of the copyright owner."

William Patry said...

Hi CopyOwner, I don't see how the first sale doctrine applies in this context: defendants are keeping their copy. If I go with a friend to a photocopy shop, and give him my book to copy, and then he gives me the book back, I don't see how the copy that was made has anything to do with Section 109. I have been on record as saying that copies of a CD that are uploaded to your iPod may be transferred if you sell or give away your iPod, since 109 refers to lawfully made and not just purchased.

CopyOwner said...

I agree with your post of 4:02 PM -- I am on record saying the same thing. I think you misunderstood my question, so let me re-phrase it. Do you see any basis for subverting the plain meaning of the distribution right in Section 106(3) without concurrently subverting the first sale doctrine on the same basis? That is, if the distribution can, despite the plain language of the Copyright Act, cover reproductions by downloading, then why would Section 109(a), which limits Section 106(3), not limit it to the same aberrant extent?

I realize my question requires a teleological suspension of the logical reading of Section 109(a), but it seems no less logical than the "making available" bootstrap of the distribution right to cover reproductions.

William Patry said...

Dear CopyOwner, I confess to feeling teleologically deficient today (and every day). I don't see a connection between expanding the distribution right with a corresponding expansion of the first sale doctrine since the former is being proposed in ways that don't seem related to me to the latter, or maybe I am just dense.

Anonymous said...

How is putting a song in your share folder any different than putting a copy of a CD on a table at the flea market with a sign saying "free, take one" next to it? Neither is, I believe, a distribution. But, if a third party takes the CD at the flea market, that is a distribution. So, why do you think it isn't a distribution when a third person downloads a music file from my client's share folder? I represent a number of accused downloaders.

William Patry said...

Bob, I would think the RIAA would say one difference is that in your hypo the CD is then leaving forever its owner's hands, and in your case, unless the CD is unlawfully made, the first sale protects you. A better analogyto the making available cases would be someone putting a book on a photocopy machine open to tens of thousands of people and saying "Make free copies here."

Don Quixote said...

As to Mr. Mittel's comment...

Section 106(3) clearly contemplates the distribution of a physical copy (or phonorecord). Your example of placing the CD on the table in the flea market with a sign saying "free - take one" is more analogous to the Hotaling case than a case of P2P file sharing. In Hotaling, the 4th Cir. indicated that the 106(3) right can be violated without evidence of an actual distribution so long as all the steps in the process of a distribution have been completed.

The big distinction that I think alot of people miss in this P2P sharing as a violation of the 106(3) right debate is that the process of downloading, if unauthorized, is a violation of the reproduction right. Downloading causes a new copy to be made on the recipient's hard drive while the 'original' copy remains on the first computer. In the case of 106(3), the holder of a copyright has the exclusive right to transfer copies by sale, rental lease or lending, or other transfer of ownership. Further, the copyright act clearly indicates that copies and phonorecords are tangible things. Transfer of ownership of tangible object via downloading -- as far as I can tell -- is impossible.

Personally (and I know I'm not alone on this one) I think Hotaling was incorrectly decided. However, it put this idea of distribution by 'making available' into our copyright jurisprudence, and we're stuck with it for the time being.

A question to Mr. Patry and everyone else....

I don't quite understand why the RIAA attempts this carpet-bomb approach to copyright litigation. To me it seems that if the evidence is sufficient to support any claim at all it would be 106(1) claims.

William Patry said...

Joseph, my guess on the RIAA strategy is that it is merely an effort to shut off as many sources of file sharing as possible.

raybeckerman said...

Dear Joseph,

I agree that Hotaling was incorrectly decided, and that the dissenting opinion was the correct one.

But I do not agree that it has put "making available" into our jurisprudence. The decisions in Napster, Barker, Mp3board, and London-Sire properly limit Hotaling to the special situation occurring there.

I do not know a single decision following Hotaling as authority for the RIAA's "making available" theory except one pro se case where the issue was never briefed (Motown v. DePietro) and one other case where the lawyer didn't know enough to brief it (Atlantic v. Anderson)(Texas case not to be confused with Oregon case Atlantic v. Andersen).

So I really don't think Hotaling has brought the RIAA's "making available" theory anywhere, and I think the subject of Bill Patry's post -- a roundup of 3 recent decisions rejecting the RIAA's "Hotaling" argument for "making available" -- demonstrates that.

raybeckerman said...

Make that 4.

Here's today's decision in Atlantic v. Howell.