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.