Copyright Office Makes Making Available Available

You know the old philosophical conundrum: If a tree falls in a forest and no one is around to hear it, does it make a sound?  Here’s an analogy in the world of digital copyright: if a file is made available online and no one is around to download it, is that evidence of possible copyright infringement?

In 2013, Congress asked the U.S. Copyright Office to answer that question regarding U.S. law.  The answer could have implications for the technologies used to collect evidence of online piracy.  And the Office’s answer, which came in the form of a lengthy report published last month, was yes.

The so-called making available right doesn’t exist by that name in the U.S. copyright statute.  There have been arguments for several years over whether the existing body of law supports such a right, analogously to the arguments over rights of digital privacy that may or may not derive from the Fourth Amendment.

An oft-cited landmark in the case history of the making available right is Hotaling v. Church of Latter-Day Saints, in which the Fourth Circuit found a making available right — or more specifically, that making a work available is tantamount to distribution and therefore unauthorized “making available” is infringement. Yet although this case was decided in the digital era (in 1997), it involved public libraries making hardcopy materials (microfiche) available for borrowing, so its applicability to digital file-sharing has been a matter of debate.  In the several cases since then that dealt with digital file-sharing and considered the making available right, courts have been all over the map — ranging from finding the right (e.g., Universal City Studios v. Bigwood) to rejecting it (e.g., Capitol Records v. Thomas-Rasset).  Copyright academics have also been divided on this point.

In its report, the Copyright Office offers a lengthy, detailed analysis (over 80 pages plus appendices) to support its positions that a making available right is required in U.S. law due to obligations that the U.S. has under international copyright treaties, and that such a right already exists in U.S. law without having to rewrite it.  It “respectfully disagrees” with courts that have found otherwise, and it recommends that Congress pass legislation to tighten up the language in the copyright statute to make the making available right more explicit without actually affecting the existing law.

The Copyright Office has been espousing a making available right for years, so that aspect of it isn’t news to those who have been following the Office on this issue.  What is new in this report (besides the depth of analysis) is the Office’s attempt to tie the making available right in the U.S. to international treaty obligations — and in particular, to rationalize it with both the “distribution” right stated in U.S. law and the “communication to the public” right in Europe and elsewhere.

Understanding the extent of the making available right is important in the field of rights technologies. Copyright owners hire copyright monitoring services to collect evidence of alleged infringements on file-sharing networks, direct download sites, cyberlockers, and so on. These services need to understand the types of evidence they should be collecting: do they have to come up with evidence of actual downloads, or is it enough to show that alleged infringers have made files available on these services?  In the current environment, copyright owners and monitoring services have to make educated guesses at the type of evidence that they can present to a court and then collect it accordingly.

Take BitTorrent as an example.  BitTorrent seeds (peers that offer files for sharing on BitTorrent) expose their IP addresses as part of the BitTorrent protocol.  This means that copyright monitoring services can interact with those IP addresses and attempt to collect evidence. There are various techniques for doing this; a few have been published in technical journals, while others are the “secret sauce” of commercial monitoring services such as MarkMonitor, Vobile, Muso, Entura, and others. There are also known techniques that seeds can use to detect copyright monitoring services and block or blacklist them.

In general, monitoring services must choose from three possible techniques: simply detect BitTorrent seeds that claim to be offering certain content; detect seeds and attempt to download the content from them; or detect both seeds and other BitTorrent users downloading the content from them. These range from easiest to hardest to implement and from least to most invasive, but conversely, they range from hardest to easiest for seeds to detect and block.  The first of these techniques relies on the making available theory; the second and third do not.

Nate West of MarkMonitor gave a talk at the recent Copyright and Technology conference that included discussion of how MarkMonitor’s system works. His explanation suggested that MarkMonitor uses the middle technique: it detects seeds and attempts to download content from them itself.  In other words, it doesn’t rely on the making available theory.  At the same time, because MarkMonitor actually downloads files from seeds, it may stand a better chance of evading blacklisting than a monitoring service that merely checks seeds to see what content they have available. That’s because a peer that merely asks the seed what content it has but then doesn’t download anything is suspicious.

MarkMonitor is of particular significance here because the major movie studios and record labels make use of it in the Copyright Alert System.

Again, it’s unclear what effect the Copyright Office’s recent report will have on how courts will treat arguments about evidence of making content available online versus actual downloads. But settling the law in this area will help copyright monitoring services design schemes that are more likely to pass muster in litigations and help the copyright owners that hire them understand what they are getting.


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