News Releases
News Coverage
News Media
PFF Highlights
News Release
CONTACT: Amy Smorodin
March 10, 2009
(202) 289-8928
U.S. Law Provides a Making-Available Right
Sydnor Releases In-Depth Analysis of Copyright Act

WASHINGTON D.C. - Consistent interpretation of the terms "to authorize" and "to distribute" of Section 106 of the Copyright Act provide for a making-available right, explains PFF Fellow Thomas Sydnor in, "The Making-Available Right under U.S. Law."

In the Progress on Point released today by The Progress & Freedom Foundation, Sydnor analyzes the evidence and arguments for a making-available right in U.S. law.  For three reasons, the author concludes, U.S. law provides a making-available right.

  • First, eleven adopted-and-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 of Charming-Betsy deference requires courts to defer to any reasonable interpretation of the Copyright Act that would provide a making-available right.
  • Second, the ordinary 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. 
  • Third, Supreme-Court cases like United States v. Morrisette show that the term "to distribute" in Section 106(3) of the Act retains the specialized meaning developed during the preceding 186 years of U.S. copyright law that equated "publishing" with "distributing copies to the public," which occurred when copies were made available to the public.  Consequently, "to distribute" provides a making-available right. 

Sydnor thus concludes that courts need not undermine "38 years of domestic legislation and of the international relations of the United States by holding that the Copyright Act of 1976 fails to provide the exclusive right of publication - the making available right - that has, for centuries, been central to the very idea of copyrights."

"The Making-Available Right under U.S. Law," is available on the PFF website.  Sydnor is also the author of "The Making-Available Right under U.S. Law, Summarized," a 10-page executive summary of the longer paper. These and other papers on the making-available right are 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