Earlier this year, I posted my personal opinion that the “making available” doctrine urged on this country’s courts by the Recording Industry Association of America (RIIA) should die a quick death. As articulated by Marybeth Peters, the Register of Copyrights, the doctrine essentially holds that “making [a work] available for other users of [a] peer to peer network to download . . . constitutes an infringement of the exclusive distribution right, as well as the reproduction right”. Letter from Marybeth Peters, Register of Copyrights, to Rep. Howard L. Berman, Rep. from the 28th Dist. of Cal. (Sept. 25, 2002).
Well, this Fall we witnessed the the destruction of the “making available” doctrine in a federal court in Minnesota, only to see it emerge like the fabled phoenix in a federal court in Texas. So, here we go…
Jammie Thomas Update
On September 24, 2008, Judge Michael Davis declard a mistrial in the case of Capitol Records, Inc., et. al. v. Jammie Thomas, vacating a judgment against Thomas for $222,000 in penalties, and ordered a new trial. At the heart of the ruling is Judge Thomas’s conclusion that a jury instruction based on the “making aavailable” doctrine was clearly erroneous. In what I consider a well reasoned opinion, Judge Davis thoroughly covers the legal arguments for and against the doctrine, but in the end his decision rests on an entirely lucid interpretation of the Copyright Act and correct application of canons of statutory construction. The RIAA urged the Court to find that simply making a copyrighted work available for distribution violates the copyright owner’s exclusive distributions rights. To prove its point, the RIAA cited to other provisions of federal copyright law that define “distribution” as including “offers to distribute.” Judge Davis noted, properly in my opinion, that “distribution” is defined differently throughout the Copyright Act, and that “when Congress intends distribution to encompass making available or offering to transfer, it has demonstrated that it is quite capable of explicitly providing that definition within the statute.” The Judge then concluded:
The Court’s examination of the use of the term “distribution” in other provisions of the Copyright Act, as well as the evolution of liability for offers to sell in the analogous Patent Act, lead to the conclusion that the plain meaning of the term “distribution” does not include making available and, instead, requires actual dissemination.
Earlier this month, The Progress & Freedom Foundation, a think-tank supported by many media industry companies, published what I believe is a truly vociferous hit-piece against Judge Thomas’s opinion. According to the article’s author, Thomas Sydnor, Judge Thomas’s opinion has caused “the analysis of this important issue degenerated from unreasoned to unreasonable to injudicious.” A casual reader of Sydnor’s article will, I think, be stunned by its strident tone and unadulterated hostility toward Judge Thomas decision, and perhaps even to the Judge himself. Sydnor characterized Judge Thomas’ opinion as “[l]awless and arbitrary.”To be sure, Sydnor has a few valid arguments to make, particularly with respect to the proper application of canons of statutory construction, but any persuasiveness in his arguments is overwhelmed by his negativity. One cannot help but suspect his shrill tone is the product of intellectual desperation. Following is how Sydnor begins his analysis:
The problems in Thomas began when its analysis of statutory interpretation and judicial precedent became unreasoned: Thomas failed to show that the consistent application of any principle of law could produce the clashing results achieved. Then its analysis became a self-parody as Thomas fired Gatling-gun accusations of unreasonableness at dozens of district-court judges, the Court of Appeals for the Eighth Circuit, other circuit courts, the Supreme Court, three Presidents, six Congresses, the Copyright Office, the Patent and Trademark Office, various U.S. Trade Representatives, and the Department of Justice—among others.
Finally, these unreasonable claims became injudicious as the Court offered an advisory opinion, questioned the wisdom of the jury and Congress, and usurped the jury’s function by mischaracterizing the Defendant’s motives and conduct so egregiously that looting became a non-profit avocation and the deterrence of deceit became “oppressive.”
On the merits of Judge Thomas’s opinion, I am persuaded by his observation that by a plain reading of the statute, § 106(3) of the Copyright Act does not include an “offer to distribute.” The opinion exhibits a respectable level of judicial restraint by refusing to imply a Congressional intent not expressly stated in the statutes. In fact, the opinion concludes with an appeal to Congress that it review the Copyright Act in light of the flood of peer-to-peer cases (now estimated to be more than 30,000) being advanced by the RIAA and its allies based on the “making available” theory. While I personally hope Congress never expressly adds a “making available” right to § 106(3) of the Copyright Act, Judge Thomas’s approach is undoubtedly the correct one under our system of government. In the end, Sydnor’s core claim appears to be that history, judicial precedent and canons of statutory construction would have provided ample cover for Judge Thomas if he had instead chosen the path of judicial activism and implied a “making available” right as part of the exclusive right to distribute. Judge Thomas was correct to ignore the seductiveness of that path and refuse to legislate from the bench. The RIAA should make its case to Congress so that the voices of consumers, technology innovators and copyright owners can all be heard.
In addition to being legally correct, in my view, Judge Thomas’s opinion comports well with the technological realities of digital media in today’s world. As digital media becomes more portable and the number of devices facilitating portability increase, judicially implying a “making available” right into § 106(3) of the Copyright Act will unreasonably empower the RIAA to stifle technological progress that benefits consumers. Judge Thomas has it exactly right when he insists that infringement of the distribution right requires proof of actual dissemination of a copyrighted work. The RIAA can and should pursue cases of actual illegal dissemination of a copyrighted work, but the courts should reject shrill appeals to judicial activism, like those of the RIAA and Mr. Sydnor.
Following Judge Davis’ ruling, the RIAA filed a motion requesting the Judge allow an appeal to the 8th Circuit. Judge Davis has not ruled on the appeal motion, and has tentatively set a new trial of March 9, 2009.
The “Making Available” Doctrine Fights Back
In late October 2008, U.S. District Judge Xavier Rodriguez upheld his decision one month earlier finding a Texas college student liable for copyright infringement based on her use of the Kazaa P2P network, and ordering her to pay $7,400. Judge Rodrigez acknowledged that the 5th Circuit had not yet ruled on the question whether a “making available” right is part of § 106(3) of the Copyright Act, and chose to follow those courts, including the 9th Circuit, holding such a right is implied in copyright owner’s exclusive right to distribute a work. The student’s lawyer has promised an appeal.
What now?
It would be helpful for all concerned if one of these “making available” cases can make its way to the U.S. Supreme Court. If Judge Thomas allows the RIAA’s appeal, then the 8th and 5th Circuits will have the issue of the “making available” squarely before them. If one of those appellate courts rejects the doctrine and he RIAA appeals, then there should be enough of a split in the circuits for the Justices to deem the case worthy of review. Given the enormous number of cases filed by the RIAA, it will not be difficult for the Justices to recognize the need for clear guidance from the SCOTUS. Until then, the battle lines remain drawn and there is confusion in the courts that will lead to unpredictable rulings and uncertainty for the digital media marketplace.
Earlier this year, one of the foremost Copyright law experts, Mr. William Patry, ended his Patry Copyright Blog after a 4-year run. In bidding farewell to his readers, Patry lamented the sorry state of U.S. Copyright law:
Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately..
I share his sentiments.
