The “Making Available” Right: What Is It and Why Should You Care?

Stephen Carlisle March 2, 2016

On February 22, 2016, the U.S. Copyright Office released its nearly 120 page report ¹ on whether the U.S. Copyright Act conferred upon the copyright holder the exclusive right to “make available” the copyrighted work in electronic formats.

This right was agreed to by the signatories to the World Intellectual Property Organization Internet Treaties, to which the United States is a participant and was ratified by the Senate in 1998. ² The treaty defines the making available right as follows:

“[A]uthors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.” ³

So what does this mean and why should you care? Two words: “file sharing.”

This is the scenario: A person uploads to an internet website various digital music or motion picture files of which they are not the copyright owner. When a third party visits the website, they can now download, by BitTorrent or other peer to peer protocols, the copyrighted content. Since the person who uploaded the files is not the one making the copies, the argument goes, they are not committing copyright infringement, just making the files “available.” So, by making one of the rights of a copyright owner the exclusive right to “make available” their content on the internet, this takes away that argument and makes the website operator a copyright infringer.

Which, of course, is why the Electronic Frontier Foundation hates the whole idea of the “making available” right. Not stopping there, they also claim that “distributions are not cognizable under section 106 unless they are of ‘copies or phonorecords’ and ‘to the public’ and that digital files are not “material objects.” ⁴ The Copyright Office calls this position “extreme,” ⁵ which is simply a nicer way of saying it’s absurd and ridiculous. Says the report:

“Such a narrow view of the distribution right, of course, would wholly upend protections for copyright owners online and therefore defeat the very purpose of the WIPO Internet Treaties—that is, to confirm exclusive rights for copyright owners in the digital age.”

Which, of course, is the intention of the EFF. Along with their other outlandish positions that “copyrights are not property” and “copyright infringement is not theft,” ⁶ it appears to be their position that copyright infringement through file sharing is somehow protected “free speech,” and formulate their arguments accordingly.

But, back to the issue at hand.

Is a cassette tape a material object? Of course it is. It contains a plastic tape that has metal particles embedded in it. This allows it to record magnetic pulses. When you play back the tape, the tape machine translates these magnetic pulses into sounds.

A hard drive is a larger metal plate that has also been magnetized, making it an updated and much larger version of magnetic tape. As this website explains it, a hard drive is:

“a large shiny, circular ‘plate’ of magnetic material called a platter, divided into billions of tiny areas. Each one of those areas can be independently magnetized (to store a 1) or demagnetized (to store a 0). Magnetism is used in computer storage because it goes on storing information even when the power is switched off.” ⁷

This is the key. Since information stored in the computer does not vanish when the power is turned off, that information packet is a copy. Under the Copyright Act:

“’Copies’ are material objects… in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object… in which the work is first fixed.” ⁸

So, the segment of your computer’s hard drive that contains the digital file is a “copy” under the Copyright Act. It does not lose its status as a copy if the information in that copy is transmitted to another computer in a manner that makes another copy. Section 115 of the Copyright Act clearly provides for distribution by means of “a digital phonorecord delivery,” which could not be possible if the EFF’s position was correct. As this Court ruled:

“[W]hile the statute requires that distribution be of ‘material objects,’ there is no reason to limit ‘distribution’ to processes in which a material object exists throughout the entire transaction—as opposed to a transaction in which a material object is created elsewhere at its finish.” ⁹

And this recent ruling in the Cox Communications lawsuit brought by BMG: ¹⁰

“Not only can electronic files be ‘material objects,’ but transferring files using a BitTorrent protocol satisfies the transactional element of distribution.” ¹¹

And every other Court that has examined the question has rejected the EFF’s argument. Again, the report states:

“[W]e are aware of no court in the United States that has adopted [the EFF’s] extreme position. Each court to have considered this issue has concluded that digital transmissions are within the scope of Section 106(3). As one court noted, such arguments ‘are unsupported by law and run contrary to the policies underlying the application of copyright law to internet communications.’” ¹²

So, having firmly established that digital files are “copies” and that “digital deliveries” are indeed distributions under the Copyright Act, why the concern over the making available right?

Because not everyone was convinced that the “making available” right made it into the copyright statute.

The WIPO treaty was ratified by Congress in 1998 and largely codified into what is now known as the Digital Millennium Copyright Act passed the same year. ¹³ However, no changes were made to the text of the act that expressly acknowledged that right, because the consensus at the time was that it was unnecessary. Congress’ specifically stated ratification of the treaty did “not require any change in the substance of copyright rights or exceptions in U.S. law.” ¹⁴

The report goes on to state:

“During the past two decades, U.S. government officials have uniformly maintained that the Copyright Act’s exclusive rights, taken together, cover the full range of conduct encompassed by the making available right, meaning that such conduct will implicate and be governed by one or more of the Section 106 exclusive rights, including, for example, the distribution, public display, and public performance rights. Subsequent Congresses have reaffirmed this conclusion through their approval, between 2003 and 2011, of a dozen free trade agreements with foreign nations obliging the United States to provide a making available right, determining in each case that adoption would not require changes to U.S. copyright law.” ¹⁵

Not everyone agreed. For his part, copyright expert Professor David Nimmer cast doubt on this issue, stating in his authoritative treatise that “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.” ¹⁶ In some court decisions (including one by the 8^th Circuit Court of Appeals), this was the only cited authority for the proposition that the “making available” right had not made its way into the Copyright Act. ¹⁷

Prof. Nimmer later retracted these comments. In current editions, it is noted that “[n]o consummated act of actual distribution need be demonstrated in order to implicate the copyright ownerʹs distribution right,” and that “the act of making available sound recordings for downloading by the public through file‐sharing networks suffices to show actionable copyright infringement.” ¹⁸

But the damage had clearly been done. As the report notes, we were left split amongst various Courts as to the viability of the “making available” right, which was only partly remedied by the Supreme Court of the United States’ opinion in the American Broadcasting Co. v Aereo. ¹⁹ There, the SCOTUS settled the issue that a public performance had occurred “notwithstanding that it transmitted to individual subscribers from personal copies.” ²⁰

Further, the report invokes the fancifully named Charming Betsy Canon to state the following:

“—a longstanding principle of statutory interpretation directing that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” Thus, a court should interpret a federal statute consistently ‘with international law or with an international agreement of the United States’ where such a construction is ‘fairly possible.’ As noted above, the United States is obligated to provide a making available right not only under the WIPO Internet Treaties, but also under no fewer than twelve free trade agreements, all of which have been approved by Congress, the most recent in 2011. There is no indication that Congress has had any intention to depart from these obligations. To the contrary, as just discussed, it is clear that Congress intended to fully implement the Internet Treaties through the DMCA and concluded that no substantive changes to existing exclusive rights were necessary to do so.” ²¹

So, in the eyes of the Copyright Office, the “making available” right springs from the rights included in these sections:

• Section 106 (1): The Right of Reproduction
• Section 106 (3): The Right of Publication
• Section 106 (4): The Right of Public Performance
• Section 106 (5): The Right of Public Display
• Section 106 (6): The Right of Public Performance by Digital Audio Transmission

It also noted that the provisions of Section 506 for criminal penalties for copyright infringement include:

“the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.”

It would be a severe logical conundrum to have criminal sanctions for exactly the same conduct that would not also be considered a civil wrong.

In sum, the report concludes:

“No commenters disputed that the United States has an obligation to recognize the [making available] right. At the same time, nearly all expressed the view that it is currently unnecessary to amend U.S. law for purposes of implementing that obligation, though, as noted, there was some disagreement over the exact scope of the treaty requirement. Under the interpretation adopted overwhelmingly by scholarly authorities and foreign courts, as well as by a substantial majority of commenters, the making available right covers the offering of on‐demand access to a work to the public, regardless of whether there is evidence of actual receipt. The Office agrees that this reading best comports with the plain language of the Treaties, which define ‘making available’ in terms of whether members of the public ‘may access’ a work.” ²²

Of course, the opinions of the Copyright Office are not law and do not have the effect of law. Only Congress and the Courts can do that. However, it certainly is persuasive authority that has been exhaustively researched and extensively referenced to support the conclusion it reaches.