I was planning on writing something about the now-famous MPAA amicus brief filed in Capitol v. Thomas, but I was waiting for a certain much more respected thinker to go first, William Patry. He has made his statement, so here’s my repost and followup.
For those unfamiliar, let me bring you up to speed: The case of Capitol v. Thomas is probably the largest of the volley of lawsuits filed by the RIAA; it is the only one to be brought to a jury trial. The judge presiding on the case asked for briefs from interested parties after he mistakenly advised the jury that the defendant merely had to have the files on her computer for infringement to occur (this, known as Jury Instruction No. 15, is the famous “making available” question that I wrote about here, here, and here back in April). The MPAA, on the very last day briefs were accepted, filed a brief which stated the following:
The fundamental issue raised by Jury Instruction No. 15 is whether the Copyright Act renders such conduct (the unauthorized making available of copyrighted works over a P2P network) unlawful, as that instruction states, or whether such conduct is unlawful only if “actual distribution has been shown” — which, as MPAA understands it, means the copyright owner must provide direct proof that specific individuals downloaded specific works the defendant made available. It is often very difficult, and in some cases impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandibly, copyright infringers typically do not keep records of infringement. Mandating that proof could have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.
It’s a sad and compelling story, no doubt, but consider the last line of the statement. They try and slip something by that must be (and has been) met with a good deal of resistance. In this sentence, “[m]andating that proof” is a subtle way of saying “insisting on innocence until guilt is proven.” The MPAA is trying to argue that they do not need to actually catch someone in order to collect on a lawsuit. We as a country have more than a little pride in that peculiar tenant of our legal system, and the MPAA cannot take that away even if the cost is infringement.
More to the point, US law explicitly states what rights a copyright holder has (reproduction, distribution, derivative works, and so on) and “making available” isn’t one of them. The brief goes on from here to talk of world treaties and obligations, all surrounding the notion that making available is (or should be) sufficient to collect hundreds of thousands of dollars from single mothers in Brainerd, Minnesota (cue Fargo reference about “settling it here… in Brainerd.”).
Too bad for the MPAA that this is not how our law works, and it’s here that copyright sage William Patry begins his systematic disintegration of the MPAA’s arguments. You can read his post here.
According to Patry, much can be read into the fact that the MPAA leads their brief with an international argument. This shows that they think their domestic argument for “making available” is weak. To address this, Patry notes that the 1996 WIPO treaty (like most international treaties) draws copyright protection in broad strokes, and leaves it to the nations to determine the what’s and how’s of copyright. The MPAA presents no evidence that (1) “making available” is a guaranteed right to all treaty members or (2) WIPO does not require actual infringement to go after infringers. They are tying to draw a specificity into WIPO where no such specificity exists. While some partner countries may protect a creator’s right to make their works available, the US does not, and all countries rely on actual and not potential infringement. Central to their second (domestic) argument is the 1804 Supreme Court case of Murray v. The Charming Betsy, which only applies if the statue is ambiguous. The law is specific, but limited. The MPAA seems to miss that point, or gets it and is leading the court astray. Regardless, I hope the court realizes this deliberate attempt to drastically redraw the bounds of the law, and doesn’t play ball.