Media & Entertainment Law

More on the metaphysics of "making available"

In anticipation of the appeal of the recent RIAA P2P victory, Fred von Lohmann reviews the "make available" vs. "distribute" debate in the copyright law.   It's more than a sematics issue -- from Ars Technica it appears the defense appeal will challenge the validity of a jury instruction about "making available" as an infringing act.  

A few orthogonal thoughts on the subject:

The "make available" controversy has been around for a while -- the EFF has previously briefed the subject and Eric Goldman has a thorough discussion here.  

And "make available " language was added to criminal liability under Section 506 in 2005:

"by 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. by 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"

even though "make available" is not part of the enumerated statutory rights under Section 106.  

Also the U.S. has signed treaties with "make available" language, but since treaties are not self-executing, that doesn't mean the concept is part of U.S. law.  See prior posts on this here, here and here.

These complexities bring to mind the newly coined term "propagate" to supersede "distribute" and thereby cast a wider net of coverage in version 3 of the GPL:

To “propagate” a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

 The FSF said it made this change because the term "distribute" alone wasn't getting the job done:

"The term “distribute” used in GPLv2 was borrowed from United States copyright law. Over the years, we learned that some jurisdictions used this same word in their own copyright laws, but gave it different meanings. We invented these new terms to make our intent as clear as possible no matter where the license is interpreted. They are not used in any copyright law in the world, and we provide their definitions directly in the license."

Full post as published by Silicon Valley Media Law Blog on October 10, 2007 (boomark / email).