Observations on Professor Patry’s making available observations
Excellent observations by Professor William Patry, in The Patry Copyright Blog: The recent making available cases commenting on the three recent cases ruling in one way or another on the “making available” theory of liability for infringement of the exclusive right of distribution without actually making a physical distribution. I have long advocated the plain reading of the Copyright Act: (1) Downloading may infringe the exclusive right of reproduction, (2) transferring possession of a CD containing an illegally downloaded work will infringe the exclusive right or distribution, and (3) assisting in either act of infringement may give rise to liability for contributory infringement, but (4) assisting someone in making an infringing reproduction does not infringe the exclusive right of distribution.
While folks in the copyright industries often speak of “distribution” in a broad sense to encompass any form of “dissemination” (e.g., leasing of 16 mm films with a license to perform the work publicly in a theater, reproduction and distribution of “hard copies” such as CDs or DVDs, and licensing for public performance over broadcast and cable television), the “distribution right” in the Copyright Act is very specific, and cannot possibly exist without the transfer of the tangible medium in which the work is embedded – the quintessential “copy or phonorecord” to which the distribution right applies. That is, there is no right of distribution that can be infringed apart from the transfer of possession of tangible “copies and phonorecords.”
The person who makes available the original copy from which an infringer makes an infringing reproduction by downloading may, of course, be guilty of contributory infringement if the copy (regardless whether it is itself infringing) is placed in a shared folder in order to facilitate the infringing reproductions. But it is pretty well settled law that to be guilty of contributory infringement there must be a primary infringement. To hold otherwise would mean I could be guilty of this amorphous “making available” right if I place my old newspapers in the trash or the recycle bin and we learn that people in the trash collection or recycling business are making infringing copies of articles published within.
I wonder what Professor Patry’s take is on the interplay between the Section 106(3) distribution right of the copyright owner and the Section 109(a) re-distribution right of the owner of a lawfully made copy – the entitlement to re-distribute the copy or phonorecord without the consent of the copyright owner. While I firmly believe that the Section 109(a) re-distribution right applies only to a physical transfer of the tangible medium of expression, just as does the Section 106(3) distribution right, it strikes me that if copyright owners persuade the courts that a physical transfer if not required for a Section 106(3) violation, it would be hard to argue that the owner of a lawfully made copy, e.g. the owner of the licensed download onto a hard drive, does not have the absolute right to re-distribute that copy to the same expansive degree as the copyright owner enjoys under Section 106(3). That is, if making a copy available for others to reproduce infringes the distribution right, then wouldn’t the owner of a “lawfully made” copy be entitled, without the consent of the copyright owner, to make it available for others to reproduce?
Because of the logic above, it concerns me that those attorneys who are advancing the “making available” argument with the short-term goal of avoiding the effort of having to prove primary infringement of the reproduction right are doing their clients (and the legitimate retailers and other distributors and reproduction right licensees who compete with infringers) a great disservice if the end result would be that those downloading unlicensed reproductions from a licensed copy in someone else’s shared folder enjoy the Section 109(a) entitlement to do so without the copyright owner’s permission.
A more straightforward theory of distribution right liability might arguably be that the act of assisting others in making infringing reproductions impairs the distribution right, not because it is itself a distribution, but because the reproduction by downloading to the end-user’s tangible medium accomplishes the same thing as a reproduction to one’s own tangible medium that is subsequently distributed to others. That is, a reproduction by downloading so that an infringing copy is placed in my home (albeit on my hard drive) is, at the end of the day, lessens my demand for a distributed reproduction to make its way to my home in the form of a CD or DVD. But for some reason (perhaps because it also requires proof of an actual reproduction by the downloader), that argument has not been advanced.