Granting the Exclusive Right to “Make Available” Copyrighted Works Won’t Stop File-Sharing
Granting the Exclusive Right to “Make Available” Copyrighted Works Won’t Stop File-Sharing
Granting the Exclusive Right to “Make Available” Copyrighted Works Won’t Stop File-Sharing

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    The House Judiciary Committee is considering
    granting copyright owners the exclusive rights to “make available” their
    works—but if going after file-sharing is the goal, the right won’t help

    The debate over copyright’s
    exclusive rights continued yesterday, when the House Judiciary Committee’s
    Subcommittee on Courts, Intellectual Property, and the Internet held a hearing about the scope of copyright protection.

    Among the topics on the
    table was whether to grant copyright owners the new exclusive right to make
    their works available to the public. 
    Copyright owners already have the excusive right to “distribute copies . . . of the copyrighted work to the public.”  Under the prevailing interpretation, merely offering
    a work to the public does not infringe this right: someone must take you up on your
    offer and access the work, and the plaintiff must prove that they did so.  If copyright owners receive the exclusive right
    to “make available” their works, they will be able to prove infringement of the
    new right without having to meet this requirement.

    Testifying against the
    right, Professor Glynn Lunney observed that the Copyright Act’s current array
    of rights already covers every activity needed to make a work available, so
    that the new right’s biggest contribution would be uncertainty.   On the other side, Professor David Nimmer,
    who edits a well-known copyright law treatise and recently changed his take on the distribution right, argued that Congress
    intended to included a “make available” right when it drafted the distribution
    right back in the mid-1960s.  Since courts are split as to whether it actually did grant the right, Professor Nimmer asked
    Congress to “clarify” that the right already exists—which, of course, would in
    reality greatly expand copyright holders’ legal rights.

    The debate at the hearing
    focused on file-sharing, although as we discussed last week a recent Tenth Circuit case shows that liability
    for “making available” would also affect other parties, like libraries.  The expanded “make available” right is
    naturally desirable to file-sharing plaintiffs, who would like to be able to
    prove infringement based solely on the upload
    of a copyrighted work, without having to show that any download took place. But if the Committee’s hope is that granting
    this new right will ease the problem of file sharing, they will be disappointed.

    First, copyright owners
    seeking to pursue file sharers already have a whole arsenal of tools with which
    to do it.  Copyright owners can claim
    that file sharers are liable for violating their excusive rights to reproduce, publicly distribute, and publicly perform or display copyrighted
    works.  And, they can loop in those who
    induce, contribute to, or benefit from and control infringement through
    copyright’s various secondary liability doctrines.  Taken
    together, these existing rights allow copyright owners to pursue file-sharers
    in every way necessary—for example, in 2009 a jury found that Jammie Thomas-Rasset infringed the distribution or reproduction right by
    uploading files to a share folder.

    Second, allowing file-sharing
    plaintiffs to prove that their “make available” rights were violated without
    having to show that someone downloaded their work would benefit not legitimate
    copyright-owning businesses, but rather copyright trolls.  The current distribution right requires only
    that the plaintiff convince the jury it is more likely than not that their work
    was downloaded.  File-sharing plaintiffs who
    take their cases to court can do this simply by asking the jury to infer that a
    file in a highly trafficked share folder was probably downloaded, or if that fails,
    by subpoenaing download records.  Rather
    than benefitting these plaintiffs, the “make available” right would help trolls
    who seek to extract a settlement without having to prove their case in court.

    Third, Professor Lunney
    pointed out in his testimony that record companies stopped bringing
    file-sharing suits because suing their customers was a PR disaster, not because
    it was too hard for them to prove that files were being downloaded.  Litigation has more or less disappeared from
    copyright owners’ strategy against file sharing, and granting a “make
    available” right will not have any greater deterrent effect than did the
    labels’ original suits under their existing exclusive rights. In recent years,
    they’ve turned instead to systems outside the courts, like the Copyright
    Alert System
    , which is an experiment still in progress.

    Far from solving file-sharing,
    the “make available” right will create only unnecessary confusion about the
    scope of liability for copyright infringement, reopening settled questions like
    the question of liability for linking to copyrighted work.  As the Committee considers this new right, it
    should keep in mind the goals it hopes to accomplish and whether the new right
    is necessary to achieve them—or even will help to achieve them at all.