I just released two new papers that discuss whether U.S. copyright law provides the making-available right required by eleven treaties and international agreements that the United States has purportedly implemented in its domestic laws. The longer paper (48 pages) is for devoted specialists; the shorter paper (10 pages) is a summary for general audiences.
I have written frequently about the making-available-right debate in blog postings, a brief and four papers: one critiques the making-available analysis in Thomas, another critiques its proposal for copyright reform, another critiques Barker, and another focuses on the implications of the distribution-right holdings in Tasini. In general, these two new papers should supplant and improve upon their predecessors, though the latter will still be useful to those seeking more detailed analysis of a particular case. In general, however, the analysis presented in these new papers should be more helpful and persuasive for two reasons.
First, these papers focus more broadly on the overall making-available-right debate that has emerged from the reported cases, treatises, and blogs, rather than on the merits of any particular case. For example, the making-available-right analysis in Capitol Records, Inc. v. Thomas, is laughably incoherent, but its many errors cannot preclude the possibility that it reached the right result for the wrong reasons. Fortunately, over the past year, the making-available-right debate has become well-defined enough to shift focus towards the major arguments that have emerged, and away from the analysis in any particular case. As a result, these new papers should be more useful to jurists and policymakers who are trying to understand and resolve the overall debate, rather than judge the merits of a given attempt to grapple with it.
Second, these papers better develop the arguments for deriving a making-available right from the term "to distribute" in Â§ 106(3). Being pragmatic, I have always preferred to derive a making-available right from "to authorize" in Section 106--the argument for doing so is simple, very powerful and based on the term's ordinary meaning. But the simpliest argument for the right may not be the best argument. For example, Fred von Lohmann, (and others) have noted that judicial restraint favors the narrowest ground of decision, and I certainly agree. Since "to authorize" defines the scope of all the exclusive rights in Section 106, judicial restraint counsels that a making-available right should be derived, if possible, from "to distribute" in Â§ 106(3).
Moreover, careful study of the history of the Copyright Act of 1976 reveals that the drafters of the Act concluded that a publication right, (a.k.a., a making-available right), was encompassed by the Â§ 106(3) distribution right itself. Throughout the 20+ year prehistory of the 1976 Act, Congress and the Copyright Office expressed this conclusion repeatedly and effortlessly--as if it would be perfectly obvious to anyone.
But it was never so obvious to me. I could see why the Â§ 106(3) distribution right could encompass a making-available right--as Raymond Nimmer notes, many courts have held that a prohibition against distributing something can be infringed by making it available or by other steps in the distribution process that precede the final transfer that completes it. Nevertheless, narrower interpretations were also possible: the distribution right could encompass a publication right, but I did not see why the drafters of the 1976 Act concluded that it necessarily did so.
Understanding their perspective meant digging into the history of both the Copyright Act of 1976 and re-acquiring their familiarity with the twin concepts of publication/making-available that had dominated the preceding 186 years of U.S. copyright laws. The latter task, in particular, was unappealing: few people appreciate the Copyright Act of 1976 more than those who now rarely have to deal with its predecessor: the idiosyncratic system of dual state/federal copyright protection dominated by copyright's version of the Four Horsemen--registration, deposit, notice, and renewal.
Nevertheless, many months, many dusty old books, and a bad case of the croup later, these new papers now develop the arguments for deriving a making-available right from the "to-distribute-copies" language of Â§ 106(3) and explain why the drafters of the Copyright Act of 1976 correctly concluded that this right necessarily encompassed an "exclusive right of publication," which has, since 1790, been synonymous with a making-available right.
The short answer is that during the 186 years of U.S. copyright law that preceded the Copyright Act of 1976, U.S. law evolved a specialized meaning for the then-central concept of "publication": the term "publication" meant "to distribute copies to the public," which occurred when those copies were made available to the public. This specialized meaning explains why the drafters of the Act would have equated the Â§ 106(3) distribution right with a publication/making-available right: that was the specialized meaning of the term. The Supreme Court has repeatedly held that when a statute uses a term that had a specialized meaning under prior law, courts should presume that it was intended to retain that specialized meaning. In this case, the validity of that presumption is repeatedly confirmed by both Congress and the Copyright Office throughout the legislative history of the 1976 Act. As a result, the distribution right encompasses a making-available right.
As always comments and reactions are welcome.