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CONTACT: Amy Smorodin
June 23, 2008
(202) 289-8928
Sydnor: No New Trial in Filesharing Case
PFF Senior Fellow Argues Law Provides Making-Available Right in Amicus Brief

WASHINGTON D.C. - The motion for a new trial in the case of Capitol Records, Inc v. Jammie Thomas should be dismissed, states Progress & Freedom Foundation Senior Fellow Thomas Sydnor in an amicus curiae brief filed with the U.S. District Court for the District of Minnesota. Jurists in the case of Capitol Records, Inc v. Jammie Thomas were advised correctly, Syndor claims, when instructed that U.S. law does grant copyright owners the exclusive right to "make-available" work for distribution.

Sydnor, PFF Senior Fellow and Director of the Center for the Study of Digital Property, argues "the Court correctly instructed the jury that U.S. law does grant copyright owners the 'making-available right' expressly required by nine binding international agreements--two treaties and seven bilateral or multilateral Free Trade Agreements." In ratifying these agreements, Congress, the executive branch and relevant agency experts have consistently interpreted the 1976 Copyright Act as providing this "making-available" right. These interpretations cannot be dismissed as "subsequent legislative history" by the courts, Sydnor explains.

The author also cites the Charming-Betsy rule, which asserts a U.S. statute should be interpreted so as to not conflict with international law or international agreements. Sydnor identifies two principles embodied in the rule which should be implied in this case. "First, the Charming-Betsy rule implements separation of powers: principles: It prevents unelected judges from intruding upon the exercise of the Treaty and Foreign Commerce Powers that the Constitution delegates to the elected President and Congress," he explains. "Second, the Charming Betsy rule--like the rule favoring constitutional constructs of statute--implements a principle of comity: When possible, it presumes that neither the President or Congress negligently or deliberately violate international agreements and obligations."

The amicus brief is available in its entirety on the PFF website.

Sydnor is also the author of "The Making-Available Right and the Barker Case: Improving the Rationale for a Sound Result," a comprehensive analysis of the "making available right," provided for in U.S. law.

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.



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