By: Jason Lunardi

Will an emerging “making available” right enable copyright owners to defeat piracy or will it spell the end of privacy for P2P users?

The Copyright Act of 1976 explicitly grants exclusive rights to authors of copyrighted works. 17 U.S.C. § 106. This bundle of rights includes the exclusive right to: 1) reproduce the work; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies of the work; (4) to perform the work publicly; (5) to display the work publicly; and (6) to perform a sound recording publicly by means of a digital audio transmission.

The Act, however, does not define the word “distribution,” which has created some confusion. This is becoming especially important to clarify the term because it could affect the Recording Industry’s campaign to sue individual peer-to-peer software users for copyright infringement. The record labels would like if the definition were broad enough to allow them to prevail on a suit by merely showing that copyrighted songs were available for download in a shared folder on the defendant’s computer. This would remove the need to show any of the files were in fact actually downloaded. This may also mean that the law could be getting closer to creating a cause of action for “attempted distribution” for having files in a shared folder, regardless if they are actually copied or distributed.

Recently, the Recording Industry has won its first lawsuit to go to trial against an individual infringer, in the case of Capitol v. Thomas. In this case, Thomas was found to have willfully infringed on the record label’s copyrights through the use of the peer-to-peer network, Kazaa. The jury awarded the RIAA statutory damages of $9,250 per song, for a total of $222,000. The interesting part, however, were the jury instructions: “The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” This will be a point of appeal that could overturn the case in the future.

The concept of “making available” liability is not new. In the international sphere, the 1996 WIPO Internet treaties provide authors with “the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.” Similarly, Article 3(1) of the 2001 E.U. Directive, for example, obligates E.U. member states to provide a “making-available” right.

In the United States, in a criminal context, the government has been successful in prosecuting software piracy (“warez”), even those who merely make available files on a server. Also, as part of the Family Entertainment and Copyright Act, Congress enacted the “Artists’ Rights and Theft Prevention Act of 2005″ or the “ART Act,” which criminalized the willful distribution of pre-release software, movies and music by making it available on a computer network accessible to the public. (see here). In the civil context, there have been a few cases that may shed light on whether “making available” digital files on a network constitutes distribution under the Copyright Act. In Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997), the court held that even though there was no evidence of an infringing act, when the public library “added a work to its collection, and made the work available to the public, it had completed all the steps necessary for distribution to the public.” Most judges have taken the record labels’ view that making a file available on a peer-to-peer network is the same as infringement. For example, in Interscope v. Duty, the court noted “the mere presence of copyrighted sound recordings in Duty’s share file may constitute copyright infringement.” There are some cases that have ruled in the opposite including UMG v. Lindor, (holding that plaintiffs would need to prove “that defendant actually shared sound files belonging to plaintiffs.”). In Perfect 10, Inc. v. Amazon.com, Inc., 2007 U.S. App. LEXIS 27843 (9th Cir. 2007), the court held that the plaintiff incorrectly relied on Hotaling, and that merely making images “available” is not an infringement.

Having a new exclusive right of “making available” may make sense from the point of a copyright holder, and would bring the United States in line with Europe on the scope of copyright protection. However, an issue that arises is the possibility of a further reduction of computer-users’ privacy. We could expect an increase in the monitoring and tracking activities that have already been employed to attempt to capture peer-to-peer users “actually distributing” files. For some time now the record labels have hired independent companies such as MediaSentry and MedaDefender to patrol the networks for infringing activity. These companies use copyright enforcement tactics including monitoring forums for copyright infringement, and the distribution of decoy files. The also log IP addresses of computers who are monitored during the transmissions of copyrighted or files. On MediaSentry’s website they say that the data they collect is copied and stored in a searchable database. Recently, The University of Oregon refused a request from MediaSentry to provide personal information about suspected file-sharing students that it had been tracking. Last year, MediaDefender was exposed for having set up a decoy file-sharing website, MiiVii, which attempted to lure users into uploading copyrighted content while tracking their activity. If record labels were able to win a copyright infringement action solely by showing that the copyrighted files were available on a shared network, it may only encourage these aggressive tactics by the private enforcement companies. In addition, many users may not even realize that they have shared folders on their computers when they use peer-to-peer networks, and they may not know how to disable the sharing capability.

Whether or not these intrusive methods of monitoring are actually warranted, the issue of “making available” is up for debate again in Atlantic v. Howell, now being heard in Arizona.