According to not-too-surprising reports, the Judge hearing Capitol Records, Inc. v. Thomas, made comments during oral argument suggesting that he will find that his making-available jury instruction was erroneous. Nevertheless, a review of all of the briefs filed in Thomas, still leaves me optimistic about the outcome of the making-available debate in the appellate courts. So far, the briefs filed in Thomas consistently resort to unprincipled statutory construction to conclude that U.S. law fails to provide a making-available right.

Opponents of a making-available right have the following problem. Section 106 of the Copyright Act of 1976 grants copyright owners "the exclusive right to do and to authorize" several things, including a right "to distribute... copies of the work to the public...." Consequently, questions about a U.S. making-available right turn on the meaning of two critical statutory terms--"to authorize...," in Section 106, and "to distribute...," in Section 106(3).

Both of these terms must be construed to determine whether U.S. law provides a making-available right. Moreover, both terms were enacted together in the same section of the same statute. So any coherent interpretation of the distribution right must apply the same principles of statutory construction as to both sets of statutory terms.

Nor can there be much doubt about the basic principle of statutory construction that should be applied to both of these terms. Ordinarily, courts conclude that any undefined statutory term should be given its "ordinary" meaning absent compelling evidence--such as powerful legislative history or evidence of specialized meaning derived from past judicial decisions--clearly showing that Congress really meant intended for it to have a specialized, broad or narrow meaning. In short, courts generally hold that "ordinary meaning" controls absent powerful contrary evidence.

But to conclude that Section 106 of the Copyright Act fails to provide a making-available right, opponents must this sensible principle violate it twice--in opposing ways--while construing the two clauses that define the distribution right granted by the Copyright Act of 1976. The process that produces this result consists of two steps.

STEP ONE: Interpret the First Clause in the Distribution Right By Rejecting the "Ordinary Meaning" of Statutory Text at the First Whiff of Ambiguous Legislative History: For opponents of a making available right, problems begin with the statutory clause that defines the distribution right as a right "to do or to authorize...." If Defendant Thomas did use KaZaA to "share" infringing files over the FastTrack file-sharing network, then she authorized the distribution of copies of those files to the public--if "to authorize" is given its ordinary meaning of "to permit."

Consequently, opponents of a making-available right argue that "to authorize" must be interpreted more narrowly. They do by relying upon the approach to statutory construction that the First Circuit used to narrowly construe "to authorize" in Venegas-Hernandez v. Asociacion de Compositores Y Editores De Musica Latinoamericana, 424 F.3d 50 (1st Cir. 2005). The Venegas opinion is admirably candid: Three times it acknowledges that it denies "to authorize" its ordinary meaning. 424 F.3d at 57 ("Looking only at the statutory language, one might well think that authorization alone could well be infringement."); see also id.; id. at 58. Nevertheless, in Venegas, the First Circuit derived a narrowing construction of "to authorize" from the legislative history of the Copyright Act of 1976. Venegas noted that the committee reports accompanying the Act stated, "[U]se of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."

Note that nothing in that sentence states any intent to depart from or narrow the ordinary meaning of "to authorize"--it mere expresses intent for the phrase to encompass a class of cases. Consequently, to divine narrowing intent from this sentence, Venegas had to infer that when the committee expressed intent for "authorize" to include contributory infringers, it thus implied intent to exclude all other classes of cases otherwise within the plain meaning of "authorize." In other words, Venegas applied expressio unius est exclusio alterius--the legal doctrine asserting that words expressing intent to include can imply intent to exclude--to a sentence in a committee report.

There are many problems with the Venegas method of interpreting "to authorize," but for now, note only that Venegas--and thus the arguments of Defendant Thomas and her amici--rely upon sparse and ambiguous-at-best legislative history to deny "to authorize" its ordinary meaning: As Venegas notes,"the narrower interpretation appears from legislative history to be closer to congressional intent...." Id. And that brings us to....

STEP TWO: Interpret the Second Clause in the Distribution Right by Ignoring Legislative History Much Stronger Than the Ambiguous Sentence Relied Upon in Step One: To be clear, I do conclude that a KaZaA user sharing files can infringe a statutory prohibition centering on the ordinary meaning of the undefined term "distribute." See, e.g., United States v. Sewell, 513 F.3d 820, 822 (8th Cir. 2008) ("the use of KaZaA to share child pornography is sufficient to uphold a conviction for the knowing distribution of child pornography"). Nevertheless, to better highlight the particular problem at issue, I will just assume arguendo that, absent resort to legislative history or other extrinsic evidence, the "ordinary meaning" of the text of Section 106(3)--the clause that begins "to distribute..."--would not encompass a making-available right.

Even with this assumption, the making-available opponents still have a problem: Plentiful, unambiguous legislative history--including the same committee reports quoted in Venegas--shows that Congress did intend for the Section 106(3) distribution right to include a "right of publication." And "publication" was and is understood before 1976, in 1976, and today to encompass the act of making copies of a work available to the public. Indeed, in the 1985 case Harper & Row, the Supreme Court relied upon this legislative history to find that "publication" was "an important subsidiary right" subsumed within the distribution right. Consequently, even the Brief of [Ten] Copyright Law Professors (p. 13) is forced to acknowledge the strength of this legislative history: "[E]ven if the courts were correct in inferring an intent on the part of the Congress that enacted the 1976 Copyright Act to equate all publications with distributions for purposes of 106(3), such an intent cannot override the plain meaning of the statutory text, absent ambiguity or patent absurdity."

So how did the ten scholars who wrote the preceding sentence reconcile its teachings with the legislative-history based narrowing construction of "to authorize" needed to deny the existence of a making-available right? They didn't. The amicus brief of the ten "Copyright Law Professors" simply fails to acknowledge that the words "to authorize" appear in Section 106 of the Copyright Act.

Nor do the briefs of Defendant Thomas or her other supporting amici articulate some principle that reconciles their embrace of the sparse and ambiguous legislative history of "to authorize" with their contempt for the plentiful and clearer legislative history of "to distribute...." The net result is very odd: Briefs that rely, on one page, on methods of statutory construction that they then indict and condemn on the next.

In the short run, this defective logic may not prove fatal: No doubt some trial courts may overlook the clash between the interpretive techniques being urged upon them. Indeed, some (like Howell) have already done so.

But in the long run--as the making-available cases reach the appellate courts--this lack of a coherent approach to statutory construction becomes a glaring flaw in the arguments against a making-available right. Appellate courts use many principles to guide the interpretation of statutes. Schizophrenia is rarely one of them.

posted by Thomas Sydnor @ 4:29 PM |

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