Yet another intriguing event has unfolded in the extraordinary drama playing out in Phoenix, Arizona, Atlantic v. Howell, a pro se case (Mr. Howell is representing himself, and has no attorney).
At first the Court issued an order, at the RIAA's request, saying that merely "making available" is a copyright infringement, and granting the RIAA's summary judgment motion.
Mr. Howell thereafter moved for reconsideration, and upon reconsideration the Court granted Mr. Howell's reconsideration motion and vacated its previous order.
The Court allowed further briefing, and specifically asked the parties to submit supplemental briefs on certain issues. (It was in response to that request that the RIAA submitted papers saying that copying one's cd's onto one's hard drive is unlawful.)
And now -- on Friday January 11th -- in an extraordinary development, the Electronic Frontier Foundation has filed an amicus curiae brief, refuting the RIAA's arguments as to the merits of its case.
Among other things, the brief makes the following point:
Plaintiffs’ summary judgment motion is premised solely on the distribution claims and is built around the erroneous contention that “[infringement of] the distribution right does not require a consummated transfer of the copyrighted work at issue.” Plaintiffs’ Supplemental Brief in Support of Their Motion for Summary Judgment, Doc. # 63, at 5 (hereinafter “Plfs. Supp. Br.”).[Ed. note: The Electronic Frontier Foundation's brief is a landmark document. It should be read from cover to cover by everyone who is interested in the scope of copyright law in the United States. This brief is the definitive statement on the RIAA's spurious invention of a "making available" theory of copyright infringement, and should put an end to it once and for all. -R.B.]
This proposition, if accepted, would contravene both the plain language of the Copyright Act and applicable precedents, threatening to disrupt copyright law in a variety of contexts beyond this case. As will be discussed further below, several Plaintiffs have already sued a national radio broadcaster, XM Radio, based on a variant of the same “making available” theory that they advance here. See Atlantic Recording Corp. v. XM Satellite Radio, No. 1:06-cv-03733-DAB (S.D.N.Y. filed May 16, 2006). Similarly, copyright owners have also pressed this theory against Google, contending that the Internet search engine runs afoul of an expansive “making available” conception of the distribution right. See Perfect 10, Inc. v. Amazon.com, Inc., __ F.3d ___, 2007 WL 4225819, slip op. at 15463 (9th Cir. amended opinion filed Dec. 3, 2007). This Court should reject Plaintiffs’ effort to further distort copyright jurisprudence on the backs of the pro se Defendants here.
Contrary to Plaintiffs’ arguments, an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work. Because the only evidence here consists of downloads by Plaintiffs’ own, authorized nvestigators, Plaintiffs have failed to shoulder their summary judgment burden, and their motion should be denied.
Section 106(3) bestows on the owner of a copyright the exclusive right “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.” 17 U.S.C. § 106(3). As this language makes clear, the exclusive right granted by § 106(3) encompasses only the distribution of certain things (“copies or phonorecords”6), to certain people (“the public”), in certain ways (“by sale or other transfer of ownership, or by rental, lease, or lending”). The language of § 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the “making available” of copyrighted works.
Plaintiffs’ effort to rewrite § 106(3) to reach such acts, moreover, is squarely foreclosed by Ninth Circuit authority. In Perfect 10 v. Amazon.com, the Ninth Circuit concluded that “distribution requires an ‘actual dissemination’ of a copy.” Perfect 10 v. Amazon.com, 2007 WL 4225819, slip op. at 15463, affirming in relevant part, Perfect 10, Inc. v. Google Inc., 416 F.Supp.2d 828, 844 (C.D. Cal. 2006). In coming to this conclusion, the Ninth Circuit joins a number of other courts that have addressed this issue in the digital context. See National Car Rental Sys., Inc. v. Computer Assoc. Int’l, 991 F.2d 426, 434 (8th Cir. 1993); In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802 (N.D. Cal. 2005) (collecting authorities); Arista Records, Inc. v. Mp3Board.com, Inc., No. 00-Civ.-4660-SHS, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002). The leading copyright law commentators also unanimously agree that “an actual transfer must take place; a mere offer for sale will not infringe the right.” Paul Goldstein, 2 GOLDSTEIN ON COPYRIGHT § 7.5.1 (3d ed. 2007); accord Melville B. Nimmer & David Nimmer, 2 NIMMER ON COPYRIGHT § 8.11[A] (2007); William F. Patry, 4 PATRY ON COPYRIGHT § 13:9 (2007) (“[W]ithout actual distribution of copies…, there is no violation of the distribution right.”).
[I]t is not Defendants’ fault that Plaintiffs are unable to produce evidence of
actual distributions beyond the 11 authorized downloads performed by MediaSentry, nor is it their burden to prove Plaintiffs’ case. Plaintiffs include some of the largest companies in the recording industry, with nearly limitless resources when compared to Defendants. It is Plaintiffs who have opted to file more than 20,000 lawsuits against individuals, many whom are unprepared for the unfamiliar (to a layperson) demands of discovery. It is Plaintiffs who have chosen to target noncommercial activities that occur in the privacy of the home, thereby injecting themselves “behind closed doors” where factual investigation can be difficult. Having put themselves in this position, Plaintiffs ought not be heard to complain that proving their distribution claims poses evidentiary challenges.
Amicus Curiae Brief of Electronic Frontier Foundation in Opposition to Plaintiffs' Motion for Summary Judgment*
* Document published online at Internet Law & Regulation
Commentary & discussion:
Keywords: digital copyright law online internet law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs intellectual property