Copyright Office Decides To Rewrite Copyright Law Itself, Blesses A 'Making Available' Right That Isn't There

from the not-such-a-good-look dept

The Copyright Office has decided to take a stance on copyright law that requires two slightly odd things. First, it requires ignoring what the Copyright Act actually says and then, separately, it requires pretending that the law says something that it clearly does not say. That's pretty incredible when you think about it.

For quite some time now there have been ongoing legal fights in the copyright world over whether or not there's a "making available right" in copyright law. The issue is actually super important. 17 USC 106 lays out the only six exclusive rights granted to rights holders under copyright. They are:
  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.
Now a quick reading of this would suggest that you've most likely violated 106(3), the "distribution" right (assuming it's not a situation where there's fair use or some other such defense), if you share a digital file. But there's a technical problem with this, which is that the "Definitions" part of the law says that the word "copies" only applies to "material objects." Digital files, as you might note, are not material objects. Now, to be clear: courts have almost universally rejected this argument when it comes up. Basically because it's inconvenient. But it is what the law says.

But there's also a separate question here: what if you, say, had a file of a copyright-covered work, and put it in a folder that was "available" via a peer-to-peer network... but the file was never actually downloaded. Then what right listed above would you have violated? Notice that the distribution right not only appears to require distribution (which would mean the actual complete file transfer) but even limits distribution further to "by sale or other transfer of ownership, or by rental, lease, or lending." If there's no "transfer of ownership" -- such as if someone just makes a copy -- then is that distribution? Or is it just an issue that can be covered by 106(1)'s "reproduction" right?

This is the big question around "making available." A number of people (generally speaking they come from the traditional copyright legacy industries) simply try to whitewash this whole thing and argue that simply having the possibility of distributing is distribution itself. Courts in the US have been very mixed on this issue. We've been covering rulings that have gone both ways for over a decade now. But should "making available" -- even if no actual distribution happens -- be considered "distribution" in light of both what the law actually says, and the basic knowledge of what "distribution" means?

Lately, the "making available" crowd has been trying to force the issue, either making sure that "making available" is explicitly included in any copyright reform and/or by making sure it's in various trade agreements. And now the Copyright Office has weighed in on the matter insisting that, despite plenty of evidence to the contrary, "making available" already violates the distribution right. A key issue in this new paper is the WIPO Copyright Treaty (remember what I said about sneaking this issue into international treaties?). Article 6 of that treaty defines the "right of distribution" to include:
Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.
It's noteworthy, of course, that a key reason for large parts of the WIPO Copyright Treaty was a way for Hollywood to push through the DMCA, which Congress had previously rejected. As the crafters of the DMCA are now totally proud to admit, after Congress turned them down, they ran to Geneva to put the same ideas into WIPO and then ran back to the US and got the DMCA approved in 1998. However, while the DMCA included a bunch of other stuff, it's notable that it did not change the existing language (seen above) around a distribution right. The Copyright Office interprets this to mean that Congress assumed that the existing 106 rights include a making available right.
During the past two decades, U.S. government officials have uniformly maintained that the Copyright Act’s exclusive rights, taken together, cover the full range of conduct encompassed by the making available right, meaning that such conduct will implicate and be governed by one or more of the Section 106 exclusive rights, including, for example, the distribution, public display, and public performance rights. Subsequent Congresses have reaffirmed this conclusion through their approval, between 2003 and 2011, of a dozen free trade agreements with foreign nations obliging the United States to provide a making available right, determining in each case that adoption would not require changes to U.S. copyright law.
The paper dismisses the courts who have ruled that there is no making available right in the US as "failing to discuss or even acknowledge the international obligations of the United States." As we first discussed well over a decade ago, the second you hear someone claim something about "the international obligations of the United States" in regards to copyright law, they're trying to hide the fact that the law doesn't really say what they want it to say. That's the case here.

Besides, a more complete reading of WIPO suggests that it doesn't support a making available right to the extent the Copyright Office now claims. For example there's a footnote on that "distribution" right definition in the WIPO agreement that says "As used in these Articles, the expressions “copies” and “original and copies,” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects." Notice that, just as with US law and "material objects," WIPO says it only applies to "tangible objects." Based on that, it actually seems fairly clear that even if there's a "making available" right in the distribution right, it couldn't apply to purely digital files, which are not "tangible objects."

The Copyright Office basically says, okay yes, sure that's what US law and the WIPO treaty say, but let's just ignore that part because, man, what the law actually says is hellishly inconvenient for what we want it to say. It waves off the "tangible" or "material" objects argument as simply being nonsense, despite the fact that it's written into both the WIPO Copyright Treaty and US copyright law:
Such a narrow view of the distribution right, of course, would wholly upend protections for copyright owners online and therefore defeat the very purpose of the WIPO Internet Treaties—that is, to confirm exclusive rights for copyright owners in the digital age.
The Copyright Office similarly rejects the other limiting factor on the distribution right under US Copyright law, the part that says that distribution can only be made "by sale or other transfer of ownership, or by rental, lease, or lending." But, the Copyright Office just laughs that off as well as just being silly talk, despite being what the law actually says.

In fact, the Copyright Office explicitly claims that the distribution right in 106(3) not only includes a making available right, but that it clearly applies to purely digital files. Because it says so:
Within the particular context of downloads, U.S. law provides the making available right through the exclusive right of distribution under Section 106(3). While some courts have failed to find distribution in the absence of evidence of completed transfers, and therefore declined to recognize claims based solely on making copies available to the public for download, the Copyright Office concludes that the appropriate reading of Section 106(3) in the context of making available claims is that it covers offers of access.
In short, the only way to reach the conclusion the Copyright Office reaches is to (1) ignore what the law actually says and (2) add in something that the law does not say. And then say that Congress must have intended it that way.

There's a lot more in the full paper which is worth reading, but it looks as though the Copyright Office basically decided to side with Prof. Peter Menell, who has been pushing this theory of making available for a while. This was countered by Prof. Rick Sanders who noted that Menell (who also basically rewrote a key section in the popular Nimmer on Copyright treatise on this subject) appeared to be focusing on what he wanted the law to say rather than what it actually said -- and that he appeared to be jumping the gun before the courts had truly decided the issue. This debate has resulted in quite a bit of back and forth sniping at one another. If you feel like really delving into the issue, I'd suggest following a bunch of those links -- the last one of which gives a fairly compelling argument for how Menell totally misrepresents the historical arguments he relies on to make his point.

Either way, it's not necessarily a huge surprise that the Copyright Office came down the way it did. In fact, it's not a surprise at all. But it is at least somewhat disappointing that the Copyright Office has decided that it can create a right that isn't written into the law and insist that must be what Congress meant all along, while at the same time ignoring the stuff that is written in the law and saying that couldn't possibly have been what Congress meant.

Filed Under: copyright, copyright office, distribution, making available, peter menell


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  1. icon
    bwburke94 (profile), 25 Feb 2016 @ 6:59am

    As much as I hate to say this...

    I think the Copyright Office has a point. Digital files do need copyright protection of some sort.

    Now, the whole "making available" thing is bullshit, but in the modern world there's no reason for the term "copies" to only apply to physical material objects.

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