Arizona Court Finds There is No "Making Available" Right in the US

In a summary judgment motion brought by seven recording labels suing music downloaders, Judge Neil Wake of the Arizona District Court in the case of Atlantic Recording Corporation v. Howell found that there is no "making available" right under US copyright law and that the downloading of music by third parties does not constitute "distribution" by the person making those files available. Jeffrey and Pamela Howell apparently made over 4,000 files available via KaZaA, a file sharing network. At least 54 of those files contained sound recordings in which the plaintiffs held copyright. Acting on behalf of the plaintiffs, MediaSentry Inc downloaded 12 of those recordings from the Howells' computer via KaZaA. The plaintiffs alleged that the Howells infringed their exclusive right to distribute copies of the copyrighted works by merely making the recordings available to the public. Judge Wake rejected their argument that publication and distribution are synonymous, and found that distribution could not be established, absent proof of unauthorized sale or transfer of a recording. Such distribution requires "an identifiable copy of the work to change hands." He also found that an offer to distribute does not constitute distribution. He went on to find that a file sharer "certainly does not distribute the copy that resides in the shared folder, for that copy never leaves its location on the owner's hard drive." This led to the conclusion that simply providing access to a work and the means to make an unauthorized copy cannot constitute infringement by distribution, and so the potential liability of a file sharer is only a secondary liability for infringement by those who download, and thereby copy, a work. The summary judgment was thus denied. Although the decision did not turn on it, Judge Wake rejected the assertion of the Electronic Frontier Foundation (EFF) in its amicus brief that the actions of the recording companies' agent could not constitute copyright infringement because it was acting on the companies' behalf. This finding has been criticized by William Patry, whose treatise on copyright was cited in the decision. Judge Wake was apparently arguing that the agent could infringe if it acted outside the scope of its agency, and so, for example, could not authorize a file sharer to distribute protected works. This implies that the companies could authorize their agent to download (copy) files without authorizing the file sharer to distribute the files (if that is what permitting downloading is) or authorizing the agent to authorize the distribution. This case is of interest to Canadians since the law related to distribution is similar. However, it is not clear that the equivalent of US secondary liability would accrue in Canada. Because of the private copying levy in Canada, downloading may not constitute infringement and, even if it does, it is uncertain whether making a work available could be considered to be authorizing downloading of that work. See, for example, Justice Von Finckenstein's vacated reasons in BMG Canada Inc v John Doe (2004 FC 488) (E-TIPSâ„¢, Vol 2, No 22, April 14, 2004). For the full decision (Atlantic Recording Corporation v Howell, Arizona District Court file no. CV-06-02076-PHX-NVW), see: http://tinyurl.com/5zy83l For the EFF's amicus brief, see: http://tinyurl.com/5b9p5y For related commentary, visit: http://tinyurl.com/5bmx9y Summary by: Tom Feather