copyright question Dear Doc:

I have heard that the music and movie industries want Congress to add a new part to the Copyright Law, one that would say that it is a violation of a copyright owner’s rights to “make available” a copy of a work, even if the copy is never accessed by anyone. What gives?

Marian the Librarian

Dear Marian:

Here at the Gary Conservatory of Copyright, we were taught that copyright protects authors, songwriters, and other creative types from the evils of people taking their work without paying for it (literally, that the creators control the right to copy.) How wrong our professors turned out to be!  You see, Congress has been adding more and more “exclusive rights” to the Copyright law for many years. Section 106 of the law (17 U.S.C. ¶106) lists six separate rights: (1) to reproduce …; (2) to prepare derivative works …; (3) to distribute … by sale or other transfer of ownership, or by rental, lease, or lending; (4) …to perform the copyrighted work publicly; (5) … to display the copyrighted work publicly; and (6) …to perform … by means of a digital audio transmission. This system of rights has grown up over the years as owners of works saw that technologies made new kinds of value possible. They have gone to Congress with an argument of, “if value, then right” and Congress, sensing that large campaign contributions might be involved, has usually gone right along with them.

Of course, some legal scholars have argued that the Constitutional mandate for Copyright, found in Article I, Section 8, Clause 8, is supposed, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” They have made this argument, most recently to the Supreme Court, in trying to say that you can’t achieve this goal by stretching the term of copyright protection to far beyond the life of the author (since you can’t promote her doing anything about progress after she’s dead.)  Sadly, the Supreme Court just punted by saying (if you can believe this) that Congress knew what it was doing when it extended the term to life plus 70 years in the “Mickey Mouse Copyright Extension Act” (for a very complete history, click here)

Now, the recording and movie industries, together with other publishers, want a new right that they claim arises from international treaties that the United States signed a few years ago: the “making available” right. Recent court decisions in cases about Internet file sharing have required that the plaintiffs show that files were actually downloaded from the defendant’s computer (thus running afoul of the “reproduce” and “distribute” rights, if not some of the others.) The trouble, say the RIAA and MPAA, is that they should not have to prove this, because peer-to-peer software, such as BitTorrent, makes it hard to prove. Just putting a file into your shared folder on your hard disk should be enough, according to industry lawyers. Some cases also back them up. In one such case, penalties were handed down for just putting a book on a library shelf, even though there was no evidence that the book was ever checked out, or even taken from the shelf and read.

One of the dangers of doing away with proof of actual downloading is that it may exacerbate the problem of copyright porno-trolls. What, you ask, is a porno-troll???  Porno-trolls are companies that produce and own the copyrights to pornographic videos, and that sue people who they believe have downloaded such videos for copyright infringement. They usually sue a number of unnamed defendants (called the “Does” after that well-known defendant, John Doe and his significant other, Jane.) They usually offer to settle for a sum of money, and in return agree to a confidentiality provision that keeps the real name of the Does secret. Since most Does would rather not have their taste in video entertainment made public, this is a very successful business model, and one company, Malibu Media, filed almost one-third of all copyright law suits in the United States last year. For the full story, click here. Some courts defend this practice as legitimate, but other judges have been critical of the scheme.

So, Marian, that is why the Doc went to Washington, DC this month to testify at a Copyright Office meeting about this “making available” change to the copyright law. It’s complicated stuff, but in the end, the Doc thinks that Copyright has gotten out of hand, gone off the rails, and that the inmates are running the copyright asylum. What’s the chance that the Doc’s view will prevail? Hard to say, but at the meeting, there were a handful of folks saying that this needs a lot of careful thought, and dozens of lawyers from record companies, copyright troll companies (see last month’s column on that), the movie industry, and others, all demanding more rights and easier standards for winning law suits. The Doc does not condone any kind of copyright infringement, but when we have a law that is out of step with both ordinary behavior of citizens and with its foundational principles, something’s wrong. The Doc thinks we need to address that, rather than making it more wrong.

Until next month, if you have a copyright question, or get a threatening letter from Malibu Media (oops!), talk to one of the attorneys at LW&H… they eat this stuff for breakfast.

— Lawrence A. Husick, Esq.