InsideCounsel » July 2008
Taken Down
Courts torn on whether “making available” violates distribution rights.
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.
“It could sweep a vast number of people and companies into liability [for infringement], where no one has even suspected liability before,” says Andrew Bridges, a partner at Winston & Strawn.
Barker’s part in this high-stakes legal war began Aug. 19, 2005, when Elektra Entertainment Group, UMG Recordings and Virgin Records sued her for copyright infringement. The companies alleged that Barker had eight copyrighted songs on her computer that could be downloaded by users of Kazaa’s P2P software. By making the songs available for download, Barker allegedly infringed the songs’ copyrights.
Barker moved to dismiss the complaint, arguing that “making available” a copyrighted work for distribution does not constitute infringement. The MPAA and the DOJ filed amicus briefs siding with the record companies and arguing that “making available” was infringement. The Computer & Communication Industry Association, the U.S. Internet Industry Association and the online civil rights group Electronic Frontier Foundation filed amicus briefs supporting Barker.
District court cases are rarely important enough to generate so many amicus briefs, but “making available” liability has attracted a lot of attention because it might significantly expand the types of activities that are infringing.
The issue has generated controversy and confusion. Some courts have recognized “making available” liability, while others have rejected it. And one recent ruling has tried to split the difference. In Elektra Ent. Group v. Barker, Manhattan Federal Judge Kenneth M. Karas ruled March 31 that there is no liability for making a work available, but there is liability for “offer[ing] to distribute copies or phonorecords to a group of persons for purposes of further distribution.”
Experts aren’t sure what this means. How is “offering to distribute” different from “making available”? “The judge did not specify,” says Richard Gabriel, a Colorado state judge who until recently was lead national counsel for the record companies in their suits against file sharers.
Public Display
The Copyright Act grants six specific rights to copyright owners. Nothing in the statute, however, mentions a right to make the work available to the public.
That hasn’t stopped some courts from ruling this right exists. The 4th Circuit led the way with its 1997 decision in Hotaling v. Church of Jesus Christ of Latter-Day Saints. In that case, a library placed an unauthorized copy of a book on its shelves and made this copy available to the public.
