Media Wonk

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Infringement claim not 'available' to RIAA - April 30, 2008

There's at least a bit of irony to an Arizona federal district court's ruling this week rejecting the RIAA's legal theory that merely making a song "available" for downloading by others through a file-sharing network constitutes copyright infringement. In a 17-page ruling (PDF) issued Monday but dated Tuesday, Judge Neil V. Wake rejected an RIAA motion for summary judgment against Pamela and Jeffrey Howell, whom the record companies accuse of using KaZaA to infringe their copyrights in several dozen songs. A key element of the RIAA's petition for summary judgment was its claim that making unlicensed copies of the songs available to others by placing them in a KaZaA "shared files" folder amounted to an illegal distribution of the work in violation of the copyright owner's exclusive distribution right, whether or not anyone actually downloaded the songs.

The court rejected that argument, ruling that, under the existing copyright statute, a violation of the distribution right requires an actual distribution of a work, not just the theoretical possibility of one.

The ruling dealt a serious blow to the RIAA by raising significantly the evidentiary bar for proving infringement in file-sharing cases. The Electronic Frontier Foundation, which had filed an amicus brief in the case in support of the Howell's, called the ruling, "the most decisive rejection yet of the recording industry's "making available" theory of infringement."

Although Media Wonk is not trained in the law, it seemed pretty clear that the RIAA was relying on a rather tenuous chain of inferences to advance a novel theory of infringement with a pretty shaky statutory foundation; the court probably did the right thing in rejecting it. It's up to Congress to define the exclusive rights of copyright owners. It would have been inappropriate for a court to make up a new, ad hoc "making available" right without clear direction from Congress.

The irony is that, in a networked world, some sort of exclusive right to "make a work available" to the public has a certain theoretical appeal.

Much of the problem Congress and the courts have had in mapping the current statutory framework of copyright to digital technologies stems from the logical disconnect between traditional concepts in copyright law and the nature of the technology.

Worrying about what happens to a copy of a work made sense when the dominant mode of making a work available to the public--of "promoting the progress of science and useful arts''--was the physical distribution of mechanically reproduced copies. Creating a protected market for those copies was an efficient mechanism for realizing the economic value of the work.

In a world where digital networks are the dominant mode of dissemination, however, the traditional system is much less efficient because digital "copies" have almost no economic significance by themselves. They're incidental to the way the technology operates, just as the lead that went into molding hot type was incidental to the operation of the printing press. Creating an economic incentive for authors by restricting printers' access to lead would have made no more theoretical sense than attempting to restrict the number of copies made across a digital network.

In a digital network, gaining access to work--its availability--is the meaningful economic transaction. If the goal is to protect the economic interests of creators, that's where policymakers should look.
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