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The Atlantic v. Brennan Decision Rejecting "Making Available", as PDF and Text

By Pamela Jones et al.

I'm getting so much email about the decision in the Atlantic v. Brennan case, I thought you'd maybe like to see the ruling [PDF] itself, and I also have it is as text. It's making news because the music industry's foundational theory that "making available" is a copyright violation was rejected. Here's part of what the court wrote about that:

At least one aspect of Plaintiffs' distribution claim is problematic, however, namely the allegation of infringement based on "mak[ing] the Copyrighted Recordings available for distribution to others."... This amounts to a valid ground on which to mount a defense, for "without actual distribution of copies . . . there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright § 13:9 (2007); see also id. n.10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (affirming the district court's finding "that distribution requires an 'actual dissemination' of a copy").

As you can see, judges not only can read what lawyers and others write on a subject, as this judge read William Patry, they can be influenced by what they read. Patry wrote a famous treatise on copyright law, which you can buy here, if you can afford it. It's 7 volumes, over 5,500 pages, and here's an interview with him about the work. The treatise comes with its own blog, which is a nice touch. If you can't afford it, he has another blog, The Patry Copyright Blog, where you can learn a lot about copyright law, and it doesn't cost a dime. Patry is also Google's Senior Copyright Counsel, but that's separate from his treatise. Can you imagine how good it must feel to write a treatise and then have a case decided in part based on what you wrote?

This case is, to me, more interesting for a couple of other reasons, though.

Full post as published by Groklaw on February 26, 2008 (boomark / email).