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Jury Instruction No. 15

The attorney of Jammie Thomas has resolved to appeal the jury verdict entered against her last week. That closely-followed trial culminated in awarding $222k in damages for willful copyright infringement to the music industry. The appeal would focus on jury instruction no. 15, the making-available quandary.

JURY INSTRUCTION NO. 15: The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

I believe that this instruction is a wrong statement of the law. Granted, the “making-available” issue in the United States has been fiercely debated and indeed, several courts and experts have adopted a similar position. However, the language of the Copyright Act and the history of the making-available right weight against the view that merely uploading files to an Internet source, from which they are accessible to the public, is equivalent to distribution. Here’s why.

The genesis of the making-available right is in the twin 1996 WIPO Internet Treaties. Article 8 WCT states:

Without prejudice to [certain provisions of the Berne Convention], authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.

The U.S. is bound by the WIPO Treaties. In a 1988 enactment, known as Title I of the DMCA, Congress introduced corresponding amendments to the Copyright Act which were meant to transpose the obligations under these Treaties. However, unlike the E.U. and many other WIPO countries, the U.S. has never adopted an explicit making-available right.

Article 3(1) of the 2001 E.U. Directive, for example, imposes an unambiguous obligation on E.U. members to secure the making-available right. Section 106 of the U.S. Copyright Act, in which the exclusive copyrights are listed, was never amended to represent such a right. The assumption was that the six exclusive rights already cover the area needed to be covered by the making-available right. Therefore, introducing a seventh exclusive right was regarded unnecessary.

I don’t know why then, in 1988, when the time was right and Congress was ready and willing to go a long way to satisfy rightholders waving the flag of international obligations, a proud and straightforward making-available right made-in-the-USA never came to being. If they could get away with Section 1201, why couldn’t they do a making-available right? Curiously, the making-available right to my knowledge has no trace in the main legislative history documents leading to the enactment of Title I of the DMCA. I once heard Marybeth Peters form the Copyright Office speaking before European experts. She was lamenting about it, saying that not enacting a making-available right was a mistake.

Anyway, it is undisputed that the Copyright Act does not contain a making-available right. It is a simple, verifiable fact. Any argument to the contrary bears the burden of persuasion and in the end, it must relay on statutory interpretation. According to the prevalent interpretation pursuing this point, it should be possible to infer the nonexistent making-available right from the six existing exclusive rights listed in Section 106. The main candidate for the job is the distribution right. As jury instruction no. 15 and others suggest, making a copyrighted work available to Internet users without permission per se violates the distribution right.

In general, “to distribute” is a verb that make little sense without a subject. To distribute what? The Copyright Act follows the same logic; there must be a subject. Section 106(3) provides that the exclusive rights include the right “to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending”

It follows that the what are copies or phonorecords. Let’s take “copies” (the analysis is similar in the relevant part also with respect phonorecords.) Section 101 provides that “’Copies’ are material objects … in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”

So, the exclusive distribution right covers acts of distributing special physical objects called “copies.” They are special because they contain the expression of a copyrighted work in a relatively stable manner. If follows that by definition, in order to violate the distribution right you must disseminate objects that contain a representation of the work. In fact, the distribution right is considered a “copy-related right.” This means to say that its violation concerns interfering with rightholders' ability to exploit works as they are fixed on physical objects, as opposed of public performance, for instance.

By contrast, the making-available right is a special form of an exclusive communication right that is sometimes acknowledged in international copyright provisions and copyright laws in foreign nations. Both in the WIPO Treaties and in the 2001 Information Society Directive, the making-available right is a subcategory of the general communication right. It has nothing to do with distribution of copies. Both the WIPO Treaties (art. 6 WCT) and the InfoSoc. Directive (Art. 4) provide for a separate, standing-alone exclusive right of distribution. If distribution already covered making-available acts, why would the Europeans need both? Why did the drafters of the WIPO Treaties bother in the first place? The answer is that the distribution right and the making-available right are two separate rights that belong to two separate families of copyrights: The distribution right is a copy-related right, whereas the making-available is a noncopy-related right (or a communication right.)

Suppose I took my music CD to a street corner and held a sign stating in large letters that people with laptops could come to me and I would let them copy the content of the CD to their computers for free. Did I distribute copies? I think I did not. I simply made it possible for others to reproduce the digital signals representing copyrighted works onto their own machines. I did not give them CDs or any other storage components or devices containing the work. My conduct further does not fall under any reasonable interpretation of transfer of ownership in copies, rental, lease, or lending.

If the record of evidence can only prove that Thomas merely uploaded songs to a P2P network, her conduct is analogous to mine, and the conclusion about infringement liability should be similar. It is not even necessary to inquire whether an actual download has ever taken place. If it did, Thomas would possibly be liable for assisting infringement by facilitating others’ violation of the reproduction right. Still, this is not equivalent to the distribution of copies as a matter of law.

The tendency to argue the opposite is understandable. It is driven by the conviction that the effect of making-available, and for that matter, the prejudice to the interest of rightholders, is similar to the effect of unauthorized distribution of copies. Yet, to say that making-available per se violates the distribution right is simply wrong. It does not matter how many times this fallacy is repeated. It remains a fallacy.

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