April 9th, 2008

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The "making available" claim, possible fun circuit split in the offing?

As shown in this article, two federal district courts in two different circuits have reached different conclusions about whether "making available" constitutes a copyright violation. Briefly, music companies have argued that if you make copyrighted material available for others to copy, for example by making your music directory available to others, then you have violated the copyright of the holder even if no one actually makes copies.

A district court in Boston, in the First Circuit, said no. Merely making available copyrighted material for illegal duplication cannot -- by itself -- infringe copyright. But a court in NY, the Second Circuit, found the opposite. That court found that making a file available for illegal downloads was the equivalent of "publishing" a work in violation of the copyright, even if no one actually downloads it.

Both cases will be appealed to their respective courts of appeals, and on roughly the same schedule. Usually, while courts do not consider the precedent of another court binding, they do try to avoid an active split between the circuits. Because major conflicts among federal circuits create huge headaches, the presence of a significant circuit conflict is one of the major factors for the Supreme Court in whether or not it will review a case.

We have a while to go before we get that far, of course. And there is no certainty how the courts in either circuit will rule. This is a relatively novel question of law, and the right result is still a matter of fierce debate. But it is definitely worth keeping an eye on.