UK Court Says Making Available Online Only Happens Where The Server Is Located

from the that-may-make-things-interesting dept

There have been a series of court battles in the US over the question of whether or not simply “making available” constituted copyright infringement. That is, copyright (in the US) covers a series of specific exclusive rights held by the copyright holder:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) 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;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

So, here’s the question that some people asked: if you only make the work available, but there is no evidence that a copy was made, then was the copyright infringed? After all, no reproduction was made. No copy was distributed. So, where’s the infringement? Supporters of saying that merely “making available” is infringing claimed that it was the equivalent of distributing because you had effectively offered it up for distribution or reproduction.

It appears that over in the UK, they have been having a similar battle. Thomas O’Toole points us to a very interesting ruling from the UK High Court saying that “making available” can be copyright infringement… but only in the jurisdiction where the server resides. In this case, it involved database rights over UK football scores and other data. A German company, aggregating football data, copied some of the data from a UK firm and offered it via their servers in Germany and Austria. The original creator of the database (in the UK) claimed this was infringing. The judge felt that, if there was infringement, it happened in Germany and not the UK when it came to the “making available” right:

I have come to the conclusion that the better view is that the act of making available to the public by online transmission is committed and committed only where the transmission takes place. It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception. I consider that the better construction of the provisions is that the act only occurs in the state of transmission.

That certainly could have a major impact on other sorts of copyright lawsuits in the UK. If the content is hosted offshore, then it would suggest that no “making available” claims could be made in the UK.

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Comments on “UK Court Says Making Available Online Only Happens Where The Server Is Located”

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Crosbie Fitch (profile) says:

Advertising willingness to copy

Making available would be affixing a CD to a public noticeboard.

On a server there is no physical access. The server HAS to manufacture a copy to send it to the recipient.

So ‘Making available’ in the online sense is actually the owner of the server instructing it to automatically manufacture copies on demand. Some lawyers would say that the downloader effectively authorises the manufacture of a copy when they request it from the server, and is thus as culpable as the owner of the server who jointly authorises the copy.

Anyway, the number of angels on a pinhead is moot when they don’t exist.

Crosbie Fitch (profile) says:

Re: Advertising willingness to copy

I should add that it should be obvious that a copyright infringement ONLY takes place where and when the copy is actually manufactured.

Simply instructing a server to make copies on demand doesn’t actually infringe copyright (unless you want to include aiding, abetting, inducement, conspiracy, etc). It’s only when the copy is made that copyright is infringed.

And there’s an assumption that the copied work is protected by copyright and no license is possessed by either downloader or server owner. If the downloader is the RIAA then they are either the infringer or a licensee, i.e. either the server owner and RIAA are jointly culpable, or neither are culpable given the copy was licensed.

I don’t think the downloader authorises the making of a copy anyway. They simply request a copy to be delivered to them on the assumption the server is able to supply an authorised copy. The downloader therefore never infringes copyright, unless they specifically request the making of a copy they know to be illicit instead of the supply of one.

As we know, it is not an infringement to receive illicit/unauthorised copies. Hence the presumption that a downloader is always immune to culpability wrt copyright infringement. This is of course broken by BitTorrent if the downloader is simultaneously an uploader.

Anonymous Coward says:

This ruling doesn’t make any sense. If it’s accepted that someone somewhere downloaded the content and that it was “made available”, then it was made available by someone too. If that’s not the original poster (as opposed to the posting service), then it must be the conduit. That is, the ISP. I think this ruling opens up the option of prosecuting ISP’s, and I think that’s wrong. The whole concept of “making available” is wrong, because it materializes in law third-party liability.

PaulT (profile) says:

Re: Re:

“If it’s accepted that someone somewhere downloaded the content and that it was “made available”, then it was made available by someone too”

Yes, it was – the original site and/or the user who uploaded the content.

“If that’s not the original poster (as opposed to the posting service), then it must be the conduit. That is, the ISP”

Why? Would you also hold the phone carrier responsible if I commit a crime while making an international phone call?

I know what you’re trying to say, but this seems rather silly.

Richard (profile) says:

Re: Re:

No I think it makes some sense – on the basis that the infringement can only occur in one place – and that is identified as the server location.
This serves to clarify jurisdiction disputes – it doen’t make any particular party liable.

Incidentally it totally blows the National Portrait Gallery’s case agains Wikipedia.

Anonymous Coward says:

Re: Re: Re:

IMHO this solves a problem that doesn’t need solving. It specifies a jurisdiction that doesn’t make sense, implying that the service provider is somewhat liable (or the ISP). Say, for example, that a guy in the US uses TPB (let’s assume it’s in Sweeden though it’s not) to share a movie with someone in France. Why would Sweeden be the jurisdiction if we accept that the liable parties are in France and the US? Except of course if you say that Sweeden is the “making available” party, and the ISP in the US and in France are the “distributors”. I see this ruling backfiring in a big way.

Anonymous Coward says:

Re: Re: Re:2 Re:

Because I think that the liable party should be the uploader or the downloader, not the technology. The server is not infringing, it’s simply providing a sharing service that may be used for infringing and not-infringing purposes. The “make available” concept is not reflected in copyright, only copying is covered in copyright. Making available is not distributing (IMHO). And I don’t think a sharing service (P2P, file locker, etc) should be liable for what its users do. I think the concept has been discussed here a few times in the last 10 years or so. I think this ruling puts the blame on the server, and I think that’s bad for technology advancements. I understand it “solves” the jurisdiction problem, but I think that a) that was never a problem to begin with and b) it solves it by blaming a third party for the action of its users. Ergo, I think it’s wrong.

PaulT (profile) says:

Re: Re: Re:3 Re:

“The “make available” concept is not reflected in copyright, only copying is covered in copyright.”

…and where does the copying take place? On the server, before it’s sent to the user requesting it. The person making the download never does the copy locally, they just download the one created by the server.

I don’t believe that a person downloading files should be held responsible, so the issue is with the server. It’s down to the server’s location as to whether free harbour protections make it liable or not, but I don’t believe any other country should be involved.

“I don’t think a sharing service (P2P, file locker, etc) should be liable for what its users do.”

I agree.

“I understand it “solves” the jurisdiction problem, but I think that a) that was never a problem to begin with and b) it solves it by blaming a third party for the action of its users.”

If you don’t believe it was never a problem, you haven’t been paying attention recently (e.g. the US trying to make the Pirate Bay and allofmp3 subject to US law instead of Swedish/Russian law or online gambling executives being arrested in the US due to activities that are perfectly legal in the company’s home country).

As for your second point, I repeat: safe harbour protections. If they exist in the company’s location, they should be protected from liability, and the liability passed to the person making the infringing action (the uploader). If not, they should consider relocating.

out_of_the_blue says:

So there's a wire straight to Germany?

I read this as implicating local ISPs, even if “innocently” passing along data. Fits into COICA: once a website is banned, it may become illegal for any ISP to connect to it in *any* way, IP address included.

[And it’s not “football”, it’s soccer. Kind of shows the priorities sports gets though; may even be that his own sports mania in wanting to get those scores swayed the judge.]

Pete Austin says:

Advertising willingness to copy

@Crosbie Fitch. You paint a very naive picture of the Internet.

When data is downloaded from a server to a client, a huge number of partial copies are made by computer equipment in many locations, and quite likely none of them is the same as the server which made the master copy.

The original uploader is unlikely to have any knowledge of this hardware, so it is a stretch to claim that they have given permission to the particular servers, routers, proxies, firewalls and clients involved.

This also applies to anyone who merely links to a download site.

So I see what you’re trying to prove, but I don’t think it works.

Crosbie Fitch (profile) says:

Re: Advertising willingness to copy

Excuse me, but copyright law assumes a very naive understanding of the Internet. Don’t blame me for an unethical anachronism that should have been abolished along with slavery, let alone left to cling on until the eventual demise of the printing press.

Copyright law waves its magic wand of ‘ephemeral copies’ to dismiss the copying that occurs in the bowels of the Internet.

That copyright is bunk and as foolish as arguing angels on a pin doesn’t mean one cannot join those arguments. People are being prosecuted, fined, and imprisoned because of them, so arguing the misapplication of 18th century law to computer networks is not entirely without merit.

The law attempts to recognise a difference between the making of a copy and its communication, that the making of copy/ies is commanded by someone, and the making of that/those copy/ies is performed by someone (probably same person), and that the communication can involve no infringing copies until reception of one or more copies.

Don’t complain to me that there’s no difference between downloading and streaming. Tell the copyright legislators who still think in terms of distributing printed copies, telegraphic facsimile, and radio broadcasting.

The biggest job is educating the public out of the crazy superstition that they should have the supernatural power to control whether anyone else copies or performs their published work.

Andrew Foster (profile) says:


The UK law on this is in the Copyright, Designs and Patents Act 1988 (CDPA). It’s available here:

In the UK, making available to the public for download IS an infringement of copyright. It’s not debated: section 20 CDPA.

[I]t should be obvious that a copyright infringement ONLY takes place where and when the copy is actually manufactured.

In the light of the above, that’s not right. There are also many, many other copyright infringements that don’t involve actual copying: public performance of a work (s19), importing an infringing copy (s22) or unauthorised rental of legitimate copies (s18A). There’s more if you want to read the CDPA.

Simply instructing a server to make copies on demand doesn’t actually infringe copyright (unless you want to include aiding, abetting, inducement, conspiracy, etc).

The UK largely does. See CDPA sections 22-26 (notably on providing the means to make an infringing copy, permitting the use of premises for an infringing performance and more).

With regard to all the points about copies necessary for the function of the internet, UK law provides that none of these will be copyright infringement: s28A.

And it’s not “football”, it’s soccer.



Crosbie Fitch (profile) says:

Re: Okay.

Yes, when I say what copyright should or should not class as an infringement, this is based on its ‘principle’ of enabling the holder to exclude others from copying or communicating a covered work, not on actual legislation in any particular jurisdiction.

“Leaving a solar powered MP3 player with USB port on a public noticeboard should not be a copyright infringement” is distinct from “… is not an infringement according to the UK’s current copyright law”.

Given people are ending up in prison for pointing their iPhones at the cinema screen, it should give anyone the collywobbles that such complex and arcane law is on the statute books, especially when things that shouldn’t be infringements are continuously being added to it.

Copyright is not a law of the people. It is a warrant given by the state to its sponsors to persecute anyone with a smaller litigation budget.

Andrew Foster (profile) says:

Re: Re: Okay.

I don’t think you’re going to encounter much resistance on this blog when you say that “copyright is not a law of the people.”

Your distinction makes a lot of sense, but to be perfectly fair, what you said was less “should/shouldn’t” and more “a copyright infringement ONLY takes place where xyz… simply instructing a server to make copies on demand doesn’t actually infringe copyright… it’s only when the copy is made that copyright is infringed.”

All of that is, if you’ll forgive me saying so, wildly inaccurate as any kind of comment on the law. You may want to make clear in advance (rather than after the fact) whether you’re giving legal advice or postulating ideals.

I believe the rationale behind the “making available” restriction is that in making the work available for free you facilitate and encourage the widespread committing of an infringement that’s practically impossible to police effectively after the point of making available. There’s also in practice next to no non-infringing use that results from it. Therefore, while we accept the legitimacy of restricting the making of the copies that will follow from it, it’s legitimate to restrict the making-available.

If you can point me to one example of a person being imprisoned merely for pointing their iPhone at a cinema screen, I’ll be surprised. But I do like surprises.

Crosbie Fitch (profile) says:

Re: Re: Re: Okay.

Andrew, the context of my discussion is clearly concerned what the law should be regarding ‘making available’ and I explain my reasoning based on the salient ‘principles’ of copyright. If I refer to specific legislation in a specific jurisdiction it will be obvious.

You’ve clearly noticed that this site is not primarily for lawyers to discuss what the law is, but for anyone to discuss the impact of legislation on society and to what extent it is about exploiting people vs protecting them.

Adding ‘making available’ to copyright legislation starts to distort copyright from concerning distribution/communication and toward controlling access. Should books be prohibited from libraries without payment of a license fee because this makes them available to the public?

Copyright started being about copies, then included performance and communication, and now includes access/availability and rent/resale. It was supposedly only to be concerned with fixed expression, but now covers the ideas too. It was supposed to be purely a civil matter, but is steadily becoming a criminal one. It used to require evidence, but now guilt can be presumed if the accused is given the opportunity to pay for an appeal tribunal. It used to cover just a single actor in terms of infringement, but now covers intermediaries, facilitators, inducers, etc. Where does it stop?

Are you only concerned with what copyright law is in any particular jurisdiction, or are you also concerned with the ethics of the law too?

Regarding imprisonment of folk who iPhone the cinema screen see my comments to this article: “Whoa Shelly Roche?Stealing Does Not Equal Free Speech”.

Andrew Foster (profile) says:

Re: Re: Re:2 Okay.

I’m absolutely concerned with the ethics of the law, yes.

My objection wasn’t that you shouldn’t discuss ideals for the law; it was that you seemed to have been talking about ideals while suggesting you were describing black-letter law. I never suggested you weren’t entitled to talk about what the law should be (but I admit it’s much easier to win the argument if you act like that’s what I was saying).

The example you cite is someone being sent to jail (later reduced to community service) for phone-recording new-release blockbusters and uploading them to sharing sites. Not simply for “pointing their iPhone at a cinema screen” as you suggested. The latter is the one that’s suggestive of a totalitarian copyright regime, and the latter is the one I was questioning. I’ve never contested for a second that recording blockbusters at the cinema would land you in trouble (but again, I can only assume, well done for proving wrong the argument that I may have been advancing in your imagination).

Copyright didn’t start by being about copies, although that might have been its initial extent for practical reasons. It wasn’t about “copies” as such: it was about ensuring return for authors who create works. That’s been very, very well-documented. It still is about exactly that – the extensions to include hosts of sharing sites, to criminalize big infringers etc are all still done to the end of ensuring remuneration for the creators of the content.

Whether they go too far in doing it is a completely separate question (and yes, of course they do, before you take the initiative and pretend I’m saying otherwise) but the point is that “making available” is restricted as the logical extension of the purpose of copyright. Not as some great leaping perversion in what it’s used for.

I have absolutely no truck for the “It’s a slippery slope” argument that you seem to be advancing, and I mean this in very general terms – present me with an objection to the proposal we’re talking about, not an objection to invented proposals that might come after it. Object to those proposals when they’re raised, and that’s where we’ll stop. That’s how you find the right point of balance.

Great point on the libraries thing though – again, good work on demolishing an argument I hinted at for precisely zero seconds. I’m sorry to be rude, but I’m just getting tired of it. It’s nonsense so please stop.

When you talk about presumed guilt, I assume you’re referring to an appeal after you’ve already been presumed innocent and proven guilty regardless, in which case it’s a pretty silly point dressed up in misleading language. Unless I’ve misunderstood? Could you possibly clarify?

Crosbie Fitch (profile) says:

Re: Re: Re:3 Okay.

For an explanation as to why copyright was created, beyond its pretext of ‘to encourage learning’ I suggest you read

That copyright is ‘well documented’ to be about rewarding authors is because it is in the interests of publishers to maintain this well documented deceit.

Enriching publishers (or even authors) with a monopoly at the cost of everyone’s liberty may be a purpose, but purpose doesn’t make something ethical.

So here’s the big question. Why do you think so many people are infringing copyright? Why don’t people obey the law that says they can’t go around singing a copyright protected song, telling a copyright protected joke, or copying a copyright protected file?

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