Will The Copyright Act be Amended to Include a “Making Available” Right

Under the WIPO Internet Treaties, member states are required to recognize in their national laws  the exclusive right of  authors of works to ‘‘make [the works] available’’ and ‘‘communicate [the works] to the public’’, including through interactive platforms, such as the Internet. The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (‘‘DMCA’’) in 1998.  Based on advice received from the Copyright Office and others, Congress did not amend U.S. law to include explicit references to ‘‘making available’’ and ‘‘communication to the public,’’ concluding that the distribution right under the Copyright Act already covers those rights.  However, because of  the absence of express “making available” language in the Copyright Act, courts in file-sharing litigation have reached somewhat different conclusions as to whether the distribution right requires proof of actual dissemination.

Commentators on the subject have opined that the “making available” right is subsumed within the distribution rights set forth in Section 106 of the Copyright Act and that most courts have correctly interpreted the Act as such.  These courts have found that a defendant infringes the distribution right by making the work available without having proof that the work was actually accessed by others.  For example, in  A&M Records, Inc. v. Napster, the 9th Circuit held that “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights”.  Also in UMG Recordings, Inc. v. Alburger, the United States District Court for the Eastern District of Pennsylvania held that “There is no requirement that plaintiffs show that the files were actually downloaded by other users from Defendant, only that files were available for downloading.”

However, it appears that some courts have concluded that an infringement of the distribution right under the Act does not occur in the absence of actual dissemination. For example, in Atlantic Recording Corp. v. Howell, the District Court of Arizona  held that “[the distribution right] is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.” 

As a result, Congress asked the Copyright Office to assess the state of U.S. law recognizing and protecting ‘‘making available’’ and ‘‘communication to the public’’ rights for copyright holders.   The study resulted in numerous comments reflecting a vast array of interests. Among those who submitted comments are The Motion Picture Association of America, Inc., and the Recording Industry Association, Public Knowledge and the Electronic Frontier Foundation, and ASCAP, BMI, SGA, SESAC and NMPA, with each reflecting a different point of view.

The MPAA and the RIAA are of the opinion that existing U.S. laws “fully implement the making available and public communication rights within the framework of the reproduction, distribution, performance and display rights of Section 106 of the Copyright Act.”  These organizations note that although there have been some anomalies, “courts generally have interpreted U.S. copyright laws to afford copyright owners the rights of making available and communication to the public, consistent with Congressional intent and in conformity with U.S. obligations.”

ASCAP, BMI, et al have expressed a slightly different opinion.  These organizations believe that the current Copyright Act could “in theory” protect the ‘‘making available’’ and ‘‘communication to the public’’ rights for copyright holders, however, divergent court opinions demonstrate the downside of such a solution.  They claim that the “range and dissonance of these judicial opinions show that the ‘umbrella approach’ to implementing WIPO’s terms has failed to reliably bring U.S. copyright law into compliance with international obligations and norms.”  These organizations fully support Congress amending the Copyright Act to “clearly, plainly, and explicitly state the ‘making available’ right under Section 106 [of the Act]” and note that “the fix can potentially be as simple as incorporating the words ‘including by making available the works to the public’ in that section.”

Public Knowledge and EFF take a somewhat different view of the subject.  Like the MPAA and the RIAA, Public Knowledge and the EFF believe that the Copyright Act currently protects “making available’’ and ‘‘communication to the public’’ rights for copyright holders.  However unlike the RIAA/MPAA, they do not state a position on whether those courts that have held that the distribution right is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public are outliers.  Quite to the contrary, they state that even if the courts “ultimately determine that in some instances, merely offering to upload a file does not implicate an exclusive right, WIPO obligations will still be fulfilled.”  Public Knowledge and the EFF reason that “the making available act turns not on whether a work has been posted or listed, but on whether members of the public have the ability to access [it] from a place and at a time individually chosen by them and that one might reasonably conclude that the right has only been implicated when at least one member of the public has indeed accessed the work.”

Public Knowledge and the EFF go further and state that the creation of a new “making available” right would risk outlawing presently legal and desirable activities and could impede the use of important efficiency enhancing technologies.  They also argue that such a law could put internet users at risk of copyright liability for hyperlinking to content.

One might say that the differing viewpoints from this small sample of comments to the study (27 comments in all) are mostly driven by economic or social agendas.  This may be a fair statement.  However, these differing viewpoints clearly exemplify the complex nature of Copyright law and show that copyright lawyers will continue to stay busy as content focused technology continues to develop.