Security

A Scholarly Look at the 'Making Available' Dispute

THREAT LEVEL has been writing heavily about the concept of "making available" as it applies to peer-to-peer copyright infringement. At issue is whether the Recording Industry Association, which has sued more than 20,000 persons, can win a lawsuit by demonstrating that somebody was "making available" the industry’s copyrighted works on the Kazaa network or other […]

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THREAT LEVEL has been writing heavily about the concept of "making available" as it applies to peer-to-peer copyright infringement.

At issue is whether the Recording Industry Association, which has sued more than 20,000 persons, can win a lawsuit by demonstrating that somebody was "making available" the industry's copyrighted works on the Kazaa network or other file sharing programs. Hollywood says 'yes' because it's impossible to prove that the public is downloading songs on peer-to-peer networks.

Digital rights groups and others, however, said the Copyright Act, which carries as much as $150,000 in fines per violation, requires proof of actual distribution to the public. It's a contested issue playing itself in courtrooms across the United States, with conflicting results.

Here is a scholarly paper on the topic, written by Draeke Weseman, a third-year law student at William Mitchell College of Law. Among other things, the Copyright Act of 1976 fails to address adequately the digital age, he writes.

"My concern is that Congress was in fact not successful at preventing future shock within at least one specific area: digital distribution. I am concerned that Congress, blinded by the foreseeable age of digital reproduction technology then arriving, failed to accommodate the age of digital distribution technology just beyond the horizon," Weseman writes in Future Shock and the Copyright Act of 1976: Is Merely Making a Copyrighted Work Available for Digital Transmission a Violation of § 106(3)?

"Now, having technologically arrived at that horizon, the courts are left scrambling to adjudicate allegations of copyright infringement through digital distribution systems without adequate Congressional guidance. The most glaring example of the future shock phenomenon in copyright law arises in the recent litigation carried out by members of the recording industry against individual peer-to-peer users."

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