Will appeal succeed in RIAA's $222,000 'making available' case?

The record labels' case against Jammie Thomas claims that merely "making available" music to the public is illegal, even if no copyright infringement takes place. Will an appeals court agree?

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
7 min read

The Minnesota woman who was slapped with a $222,000 penalty for "making available" songs on the Kazaa network is appealing her loss.

But can she actually win against the Recording Industry Association of America?

There's probably a 50-50 chance. On one hand, the RIAA has won some minor victories in the last few years with its "making available" arguments to expand copyright law beyond what it actually seems to say. Now that there's finally going to be some serious public and judicial scrutiny, however, the odds are closer to even.

(If the RIAA wins, by the way, the precedent would create some real dangers for innocent users. But more on this later.)

[#1] What's important to remember here is that the RIAA's victory rests in large part on, as I wrote last week, the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point.

To understand how this will play out, let's start with the plain text of the relevant part of federal law. It says:

17 USC 106: The owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending

Illicit distribution of copyrighted materials over Kazaa involves paragraphs (1) and (3). Those paragraphs restrict the unauthorized "reproduction" or "distribution" of music--which sure doesn't seem to cover Thomas leaving songs in her shared directory if they were never actually downloaded.

So how can the RIAA get away with this? This is where things get murky. The definition of "publication," which the U.S. Supreme Court says is the same as distribution, says: "Offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

[#2] Some courts have interpreted that to mean proof of actual copying is necessary; others haven't. Take a 1997 case involving the Church of Jesus Christ of Latter-Day Saints, sued by genealogical researchers who sold their copyrighted work on microfiche. Instead of buying multiple copies, the Mormons bought only one, made copies, and sent the duplicates to their branch libraries.

The copyright-holding genealogists took the position that the RIAA does today. They claimed that merely proving the copyrighted work was available was good enough. In response, the church argued that the researchers needed to show a library patron actually had read the pirated microfiche.

The RIAA's argument won. The 4th Circuit concluded by a 2-1 margin:

We agree with the (researchers). When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of Section 106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.

Because a split decision in a different federal circuit a decade ago in an unrelated case may not be entirely persuasive, the RIAA has invoked other arguments as well. And they've had some preliminary success.

Among them: 1. The WIPO copyright treaty, which the United States has ratified, covers "the making available to the public" of copyrighted works. 2. Marybeth Peters of the U.S. Copyright Office says that making a file "available for other users of a peer to peer network to download...constitutes an infringement of the exclusive distribution right, as well of the reproduction right." 3. Having child pornography in a Kazaa shared folder is, at least in the 10th Circuit, good enough to support a conviction in a criminal case. 4. The 9th Circuit believes that copyright law was infringed when peer-to-peer users "make their collections available to all other" users.

[#3] Those are strong arguments. But there's another side to the story as well (which is why I believe that Thomas has a 50-50 chance): WIPO is not binding by itself; Marybeth Peters' opinions aren't as important as what the law actually says; a civil dispute is different from a criminal prosecution; and so on.

Not all judges in the RIAA cases have agreed with the music industry's lawyers. In a preliminary ruling in Interscope Records v. Duty, a judge said last year: "To be clear, we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology at this stage..." At least two other courts have followed that line of thinking.

In a pre-trial motion in UMG Recordings v. Lindor, the court ruled that: "At trial, plaintiffs will have the burden of proving by a preponderance of the evidence that defendant did indeed infringe plaintiff's copyrights by convincing the fact-finder, based on the evidence plaintiffs have gathered, that defendant actually shared sound files belonging to plaintiffs." (Emphasis added.)

Most judges, though, haven't spent too much time puzzling through the implications of "making available." One exception is U.S. District Judge Kenneth Karas in Elektra v. Barker, who has heard arguments from not just the RIAA but also the Electronic Frontier Foundation, the American Association of Publishers, the Motion Picture Association of America, the Computer and Communications Industry Association, and the U.S. Department of Justice. The Justice Department, by the way, sided with the RIAA. A decision from Judge Karas is expected at any time.

All those cases receive something of a boost from U.S. District Judge Marilyn Hall Patel's 2005 ruling in an offshoot of the original Napster litigation. Patel is no tech-neophyte; she presided over Napster, a 1990s-era encryption source code case, and the recent Americans with Disabilities Act lawsuit over Target's Web site. She wrote:

The gravamen of the parties' dispute lies in whether the Copyright Act requires proof of the actual dissemination of a copy or phonorecord in order to establish the unlawful distribution of a copyrighted work...If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it was perfectly capable of doing so. Yet plaintiffs have failed to identify anything in (the law's) legislative history, much less the statute itself, to suggest that Congress even considered the scope of civil liability for copyright infringement in enacting the statute. Any attempt to infer legislative intent from such silence is at best speculative.

[#4] I said at the beginning of this article that if the RIAA wins on "making available," the precedent would create real dangers for innocent users. That's because the awesome weapon of copyright law can be turned on people who only mistakenly ran afoul of it.

The case of the Mormon church buying only one copy of the microfiche for multiple libraries was pretty straightforward: the purpose of any library is to distribute information, and intent to distribute can be assumed.

But computers are far slipperier than libraries (or, put another way, we're all libraries now). If my mother accidentally shares her computer's entire hard drive with the world by clicking the wrong button in an OS X setup menu, is that "making available?" Should she be held liable for $222,000 in damages, and lose her house, for accidentally making two CDs of music available to the world?

If I don't upgrade to a newer version of my operating system even though I know there's a security glitch that opens my hard drive to the Internet, does that mean I'm "making available" my music collection? Do Internet service providers "make available" access to Kazaa? Do search engines "make available" links to infringing files?

"It's hard to distinguish having something in a Kazaa shared directory versus having it on my shelf and not locking my door or having it on a computer and not bothering with a firewall so the college kids--who I know full well live next door--can hop on and take it," says Jessica Litman, who teaches copyright law at the University of Michigan and is the author of Digital Copyright. "If the RIAA eventually wins on this one, it would be a ruling I'd be willing to say is wrong," Litman added.

These are not all easy questions to answer, especially because intent doesn't matter much in copyright law. It's what lawyers like to call a strict liability offense--meaning that even accidental "making available" can slap you with a $222,000 penalty. This might make sense for corporate defendants, but it gets bizarre quickly when applied to hundreds of millions of Internet users.

It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.