Taken Down

Tenise Barker has some powerful enemies. The Department of Justice (DOJ), three multinational record companies and the Motion Picture Association of America (MPAA) have lined up against her.

Barker, who lives in a housing project in the Bronx, has been caught up in a legal battle over the scope of copyright protection. The result could have a profound effect on the entertainment, hardware, software and online industries.

Even without evidence of actual distribution, the court ruled that the library had infringed. Merely making the work available to the public violated the copyright owner's distribution right, the court held. Otherwise, "a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission."

Shaping the Law
That was just the beginning. "In [the 2001 case of] A&M Records Inc. v. Napster Inc., the 9th Circuit picked up on Hotaling and applied it to P2P services," says Gabriel. "The court said that 'making available' is a violation of the distribution right."

So the legal battle continues.


Steven Seidenberg

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