Tuesday, the House Committee on the Judiciary held a hearing on “The Scope of Copyright Protection.” The critical question before the Committee was whether or not the act of uploading a copyrighted file onto a file sharing website is itself unlawful, or if the file must be subsequently downloaded by another user to constitute a copyright violation. In the latter circumstance, a copyright holder bears the burden of proof that a third party downloaded the file before the individual who uploaded it can be held responsible.
This leads to a larger question: is there such thing as a “making available” right? The courts have not been able to come to any concrete agreement. Current copyright law provides holders with an exclusive right to distribute their work in public. But does uploading a file constitute as distributing, or does the distribution occur when someone else downloads it? Expert testimony from proponents of the “making available” right argued that uploading copyrighted material to file sharing websites is equally an infringement of copyright law as is downloading the material.
Witness Mr. David Nimmer, Of Counsel, Irell & Manella, LLP, requested that Congress reaffirm the “making available” right, suggesting that the United States has traditionally acknowledged its existence. He explained that there is a historic precedent for the right, but ambiguous language of the laws has caused confusion. Unauthorized distribution of copyrighted material stifles innovation and progress in the creative arts and sciences. Uploading copyrighted material makes it freely available to the world, and therefore is unlawful. When asked by Congressman Conyers what the key issue was regarding copyright law, Mr. Nimmer responded that the copyright laws passed in 1976 are outdated, and need to be revised to fit new technologies.
However, not everyone agrees with the “making available” right. Critics say that current law provides copyright holders sufficient protection, and there would not be substantial benefit from passing legislation affirming the “making available” right. Witness Glynn Lunney, Jr., Tulane University Professor of Law, said the “making available” right would make it easier to pursue copyright infringers, but it would not solve the rampant problem of illegal file sharing. Additionally, it could contribute to the growing problem of copyright trolls.
But without a "making available" right do copyright holders really have sufficient protection? The answer is no. Copyright Holders should have the authority to determine how their creations are distributed. If anyone anywhere can post a file, they are distributing that content without the authorization of the copyright holder. Without the “making available” right, they must prove their material was not only uploaded, but also downloaded by a third party, which is incredibly difficult and may require subpoenas to internet providers. While copyright holders are wading through the court system, their material remains online and potentially available to millions of internet users.
Trying to make this petty distinction seems akin to someone waving their hands very close to your face while chanting "I'm not touching you!" Of course they are definitely in your personal space.