Nimmer Urges Congress To Reaffirm Copyright Act’s “Making Available” Right

Congress should reaffirm the existence of the “making available” right to protect intellectual property, though it would have significant ramifications for Internet and social media users, copyright law expert David Nimmer told lawmakers at the House Judiciary Subcommittee on Intellectual Property and the Internet today. Nimmer updates the influential Nimmer on Copyright treatise and serves as of counsel with Irell & Manella LLP. “The issue at hand,” he said, “is whether the act of uploading should itself be considered to violate the copyright owner’s exclusive rights or, alternatively, whether the copyright owner should be required to shoulder the burden of proving, in addition, that a third party downloaded that particular digital file, before the person who uploaded it can be held responsible.”

The hearing was held as part of the Judiciary Committee’s comprehensive review of U.S. copyright law, first announced by Rep. Bob Goodlatte (R-Va.) in April 2013.

Nimmer urged that Congress reaffirm the “making available” right, as courts have made contradictory rulings. “The matter therefore becomes ripe for clarification by Congress,” he said. Without the “making available” right, every peer-to-peer upload case “becomes a trying exercise in laborious discovery,” Nimmer said.

He also recommended that tightening damage awards and furnishing a small claims tribunal for resolving peer-to-peer sharing claims be coupled with the move to establish the making available right. Rationalizing statutory damages is important, Nimmer said, because “unfortunately someone who has uploaded thousands of works may be liable for millions, up to billions, in damages,” which judges are reluctant to agree to. “Right now the scheme was set in 1999, right before the invention of Napster. Our law is trying to keep pace with technology.”

Tulane law professor Glynn Lunney, another witness at today’s hearing, agreed: “Statutory damages are going to need to be revisited.”

Streamlining cases, rather than having a federal case for every incident, would expedite proceedings, Nimmer said, particularly if done through small claims court to “get quick and fair and expeditious justice.”

‘Making Available’ Right Could Impact Cloud Computing, Social Media

However, Lunney argued that the “making available” right would upend many cases that have been resolved under current understanding of copyright law, and create serious questions regarding emerging modes of sharing information over the Internet: particularly cloud computing, linking and social networks. “[I]t would not put the proverbial file-sharing genie back in the bottle,” Lunney said.

Aereo Supreme Court Case To Set Important Precedent

Witnesses at the hearing said they plan to closely watch what the Supreme Court does in American Broadcasting Companies, Inc. v. Aereo, Inc., a case in which a company claims it “publicly performs” a copyrighted television program when it retransmits that program to thousands of paid subscribers over the internet. On Jan. 10 the Court agreed to hear the case.

“When all is said and done, where is the revenue going to come from? How will these companies be compensated for their work?” asked another hearing participant, Mark Schultz, associate law professor at Southern Illinois University. “This is an appropriate topic for the courts, but if the courts interpret the Copyright Act in a way that undermines its essential policy, it’s time for Congress to act.”