The Making-Available Right Under U.S. Law
Thomas D. Sydnor II
affiliation not provided to SSRN
March 10, 2009
Progress & Freedom Foundation Progress on Point Paper, Vol. 16, No. 7, March 2009
Consistent interpretation of the terms "to authorize" and "to distribute" of Section 106 of the Copyright Act provide for a making-available right.
For three reasons, 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.
Thus, 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.
Number of Pages in PDF File: 58
Keywords: Charming Betsy, copyright, patent,making-available,making-available right,1976,exclusive right,intellectual property,Phonograms,piracy,WIPO,WCT,WPPT,free trade,distribute,authorize,publish,Venegas,infringe,infringement,expressio unius,contributory liability,berne,reproduction,property law,Morrisette
JEL Classification: D23, F13,K1, K11, K2, K21, K3, K33, L8 ,L82, L86, L96, L98, N40, O34, O38, O3Accepted Paper Series
Date posted: March 25, 2009 ; Last revised: March 26, 2009
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