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MPAA: We don't need no stinking evidence - June 23, 2008

Lots of buzz over the weekend about the MPAA's novel legal theory on peer-to-peer downloading advanced in an amicus brief filed in the case of Capitol Records et al. v. Jammie Thomas, who was charged with copyright infringement last year for sharing 24 songs over the Kazaa network. According to the studio group, copyright owners shouldn't have to produce actual evidence that a copyright work had been subject to an infringing distribution over a P2P network to establish infringement. Instead, courts should simply infer the intention of the alleged infringer from circumstantial evidence.

According to the brief:

It is often very difficult, and in some cases impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement. Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.

Thomas was convicted of infringement by a Duluth, Minn., jury in October, 2007 and fined $220,000. Since then, the judge in the case has had second thoughts about his instruction to the jury that simply making songs available for downloading by others by placing them in a "shared" folder represented an unauthorized distribution of the work under copyright law, whether or not any actual downloads occurred. The judge is considering granting Thomas a new trial and asked for public comments on the "making available" theory. The MPAA filed its brief supporting the theory on Friday.

Equally striking about the MPAA's brief, however, is its effort to back door U.S. copyright law by invoking U.S. treaty obligations. The bulk of the studios' brief, in fact, is taken up with the argument that the WIPO Copyright Treaties, as well as numerous bilateral trade agreements, commit the U.S. to the "making available" theory. And that under long-standing legal principles, courts should interpret U.S. statutes wherever possible so as to be consistent with the country's international obligations and treaties.

It is well-established that courts should interpret domestic statutes harmoniously with international obligations of the U.S. whenever possible. The Supreme Court recognized this principle over Two hundred years ago, when Chief Justice Marshall wrote that "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains," (Murray v. Schooner Charming Betsy).
[snip]
Charming Betsy also has particular relevance to copyright law given "Congress' objective of achieving 'effective and harmonious' copyright laws among all nations," its "efforts to secure a more stable international intellectual property regime" and its concern with "strengthening the credibility of the U.S. position in trade negotiations with countries where piracy is not uncommon"," Subafilms Ltd. v. MGM-Pathe Communications...As the legislative history of the Copyright Act of 1976 states, "In an era when copyrighted works can be disseminated instantaneously to every country on the globe, the need for effective international copyright relations...assumes every greater importance."

It then goes on to argue that the framers of the WIPO Copyright Treaties, as well as U.S. trade negotiators in bilateral agreements, clearly intended the exclusive distribution right granted to copyright owners to incorporate making a work "available" to the public.

Leaving aside the question of whether that actually was the intention of the WIPO framers, it amounts to an argument for reading language into U.S. copyright law that Congress plainly didn't put there by, in effect, laundering it through international agreements.

Now you know one reason why the MPAA, RIAA and other copyright groups are so keen on incorporating strict intellectual property enforcement language into U.S. trade agreements: it isn't just meant for foreigners.

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