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CONTACT: Amy Smorodin
November 17, 2008
(202) 289-8928
Thomas Decision Unreasoned, Unreasonable
Sydnor Finds Judge's Analysis of Making-Available Right Deeply Flawed

WASHINGTON D.C. - A recent judicial opinion that vacated the jury verdict in Capitol Records v. Thomas because U.S. copyright law does not provide a "making-available right" is profoundly flawed, explains Senior Fellow Thomas Sydnor in "Thomas on the Making-Available Right: An Unreasoned and Unreasonable Decision." The Progress on Point, released today by The Progress & Freedom Foundation, is the first in a two-part analysis of the recent motion in the Thomas case.

"In Thomas, the analysis of this important issue degenerated from unreasoned to unreasonable to injudicious," states Sydnor, Director of PFF's Center for the Study of Digital Property.

In his analysis, the author finds that this unreasoned opinion failed to show that any principles of law were applied consistently to the interpretation of statutes and precedents. One moment, the flimsiest of extrinsic evidence proved that a statutory term had a specialized, narrow meaning denying a making-available right. The next, far more powerful, plentiful and unambiguous extrinsic evidence failed to prove that another term had a specialized meaning encompassing a making-available right. When a phrase extraneous to a circuit-court’s alternative holding was helpful, the dictionary definition of dicta was declared "binding precedent." But when an alternative holding from the Supreme Court was adverse, the entire holding was declared non-binding. The Thomas decision "thus defied law and logic," Sydnor claims.

Finally, explains Sydnor, Thomas unreasonably accuses scores of judges, Congresses, Presidents and expert agencies of adopting unreasonable interpretations of the Copyright Act. For over forty years, these entities have repeatedly concluded that the U.S. Copyright Act provided a making-available right. Sydnor shows that even the precedents cited in Thomas refute its claim that for over forty years, expert legislators, jurists, executives and administrators consistently adopted an interpretation of the Copyright Act that no reasonable person could ever adopt.

"Thomas on the Making-Available Right: An Unreasoned and Unreasonable Decision," is available in its entirety on the PFF website.

Sydnor also authored "The Making-Available Right and the Barker Case: Improving the Rationale for a Sound Result," another analysis of the "making-available right" debate.

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