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CONTACT: Amy Smorodin
May 20, 2008
(202) 289-8928
U.S. Law Provides a Making-Available Right
Rationale for Barker Decision Wrongly Limits Meaning of Copyright Act

WASHINGTON D.C. - A weak rationale underlies the correct result reached in Electra Entertainment Groups, Inc. v Barker, explains Tom Sydnor in, "The Making-Available Right and the Barker Decision: Improving the Rationale for a Sound Result." In the Progress on Point released today by The Progress & Freedom Foundation, Sydnor explains that Barker's rationale for denying a motion to dismiss the complaint wrongly constricts the broad meaning of "to authorize" and "distribute" in the Copyright Act. It also ignores international agreements and could undermine criminal cases involving distribution of malicious software and child pornography.

In the paper, Tom Sydnor, Director of the Center for the Study of Digital Property at The Progress & Freedom Foundation, rejects the narrow interpretations of the Copyright Act that led Barker to question whether U.S. law provides copyright owners with a "making-available" right. For three reasons, the author concludes that U.S. law provides a making-available right.

  • First, the plain meaning of the term "to authorize" in Section 106 of the Copyright Act shows that users of file-sharing programs "authorize" the distribution of copyrighted files by "sharing" them with thousands of strangers.

  • Second, the plain meaning of the Act's term "distribute" shows the act of "making available" is part of a distribution process that can span from importation of copies to their final delivery.

  • Third, eight adopted, implemented international agreements require the U.S. to provide a making-available right. Since 1804, courts have adopted any possible interpretation of a U.S. statute that would avoid a conflict with the international obligations of the United States. This principle applies in cases like Barker: Congress and the President interpret the Copyright Act while enacting laws to implement the international agreements of the United States; consequently courts owe these co-equal, elected branches of government the interpretative deference that they would grant to one unelected administrator's interpretation of an existing statute under Chevron U.S.A., Inc. v. NRDC, Inc..

The author also counters claims that applying rights expressed in the 1976 Copyright Act to new technologies improperly expands copyright law. Sydnor explains that Congress drafted the 1976 Act to be future-proof and technologically neutral. "If an unauthorized use falls within the scope of any exclusive right 'to do or to authorize' granted by the [1976 Copyright] Act and no limitation or exception applies," Sydnor states, "then the Act makes the use infringing, regardless of the novelty of the technology or 'market' involved."

Sydnor concludes that, "[C]ourts should hold that recognition of a making-available right is necessary as a matter of law, and sound as a matter of policy. The recognition of such a right will reinforce the incentives that will prompt responsible content providers and online-service providers to devise creative means to protect both the investments of artists and the safety of Internet users while halting the distribution of malicious programs and violent child pornography."

"The Making-Available Right and the Barker Decision: Improving the Rationale for a Sound Result," is available on the PFF website.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation