After the ruling, the Thomas Plaintiffs did just what they should have: They filed a motion to certify the Court's making-available-right ruling for an interlocutory appeal. Thomas is an ideal case for an interlocutory appeal: the recent self-reversal in Thomas would require the parties to re-try the entire case because the Court used internally inconsistent reasoning to adopt a minority position on a pure question of law that admittedly causes the United States to violate nine international agreements. Stronger grounds for an interlocutory appeal are scarcely conceivable.

Unfortunately, on December 23, 2008, the Court in Thomas denied the motion to certify an interlocutory appeal--for an absurd reason. According to the Court, there can be no substantial disagreement that it was bound to deny that a making-available right exists by the "binding precedent" established in the second of three alternative holdings in the contract-interpretation case National Car Rental.

Consequently, the latest ruling in Thomas repeats the fatal error that eviscerated the Court's making-available-right analysis: again, the Court has taken a very weak legal argument and made it laughable by decreeing--not just that reasonable persons could believe it--but that no reasonable person could have any substantial doubt that the dictionary definition of obiter dicta in a case about the interpretation of a contract imposed a "binding precedent" upon district courts adjudicating infringement claims. If anyone on the other side of the making-available right debate wants to defend the Court's now-even-more-absurd account of the "binding precedent" established by the Eighth Circuit in National Car Rental, I invite them to do so.

Sadly, the Court's latest absurd decision raises some hard questions for the Thomas Plaintiffs. Were any possible avenue for appellate review to remain, it would seem unwise for the Plaintiffs to retry Thomas before a jury that will be guided by a Judge who has now made gratuitous public pronouncements about the Defendant's motives, culpability, and the amount of damages award needed to deter her--pronouncements that imply, repeatedly, that previous jurors who had disagreed with the Court's opinions on these matters were obviously unreasonable....

In such a situation, the Plaintiffs can consider the option of invoking the All Writs Act and petitioning the Eighth Circuit for an extraordinary writ. There are at least two ways to proceed.

One option involves filing a motion to disqualify Judge Davis for creating the appearance of partiality, and then--should that motion be denied--petitioning the Eighth Circuit for a writ of mandamus directing the Judge to disqualify himself. This is a recognized use for mandamus. Moreover, the Court's gratuitous public pronouncements about the merits of the Thomas case recorded in Section K, (discussed here at pp. 2, 4-7), do seem to justify such a motion. Nevertheless, a motion to disqualify should always be a last resort.

The other option would be to petition the Eighth Circuit for an extraordinary writ relating more directly towards the merits of the case. For example, a writ of mandamus could be sought to inform Judge Davis that "binding precedent" did not preclude him from confronting the substantive merits of the motion to certify. The Eighth Circuit even seems to have some older precedents that preserve the possibility of certiorari jurisdiction in appropriate cases.

While these are less well-established bases for seeking an extraordinary writ, they could be worth a try. After all, the Eighth Circuit might be sympathetic to claims that it is just plain absurd to hold that the dictionary-definition of obiter dicta that the Circuit once used to illustrate the legal principle underlying the second of three alternative holdings on the interpretation of a software-licensing contract inarguably binds district judges adjudicating copyright infringement claims to hold that the United States is negligently or maliciously violating the nine international agreements that have, since at least 1973, required the U.S. to provide a making-available right to owners of copyrights in sound recordings.

So I found it funny when a Wired magazine blog tried to put a partisan spin on one of my recent papers. This paper criticized the vacatur of the jury verdict in Capitol Records, Inc. v. Thomas. Wired tried to spin this paper as "Republican think-tank attacks Democratic judge." I can see why this spin might have fooled a harried editor, but it is laughable.

First, in Thomas, Judge Davis vacated a jury's verdict by holding that an unreasonable federal judge, (Judge Davis), had committed "manifest error" by adopting an unreasonable interpretation of the Copyright Act. My paper argued that Judge Davis was too hard on himself--that his original jury instruction was both reasonable and correct. But since Judge Davis was reversing himself, Wired's account of why I objected to his self-reversal becomes inane. My paper argued that Judge Davis got the law right (on his first try)--and Wired would like to see this a Republican attack on a Democrat. Yet Wired's spin would have been more appropriate had my paper argued that Judge Davis got the law right (on his second try), because then I, like Judge Davis, would have been arguing that a Democrat committed a "manifest" and "unreasonable" error of law.

Second, my paper also rejected Judge Davis' claim that he, like forty years of prior federal officials in all three Branches of the government, had acted unreasonably by holding that the Copyright Act provides a making-available right. In other words, I argued that President William Clinton, who signed the WIPO Treaties Implementation Act of 1998 and nominated Judge Davis to the judiciary, was not as unreasonable as his own nominee claimed.

This is what happens when you try to find partisanship where it does not exist: You end up arguing that a "Republican" attacked a "Democrat" because the "Republican" tried to show that neither a Democratic Judge nor the Democratic President who appointed him were as unreasonable as one of the Judge's recent rulings would suggest. The substantive merits of Wired's attempt put a Red-versus-Blue spin on the making-available-right debate need no further comment.

Second, commercial producers of content and bottled water who incur the costs and risks that let them create products that consumers favor can compete against lower-quality "free" products--but they cannot compete against a "free" version of their own product. To suggest otherwise is absurd. By incurring costs and risks, a commercial producer of bottled water can compete against the County Water Board on the basis of quality--but not if the we let County Water Board unilaterally decide to "redistribute the wealth" by stealing the private company's best-quality water and pumping it "for free" through the water mains.

Tracker sites like The Pirate Bay and infringing users of programs like uTorrent are engaged in conduct just as selfish, destructive, wrong, and unsustainable as that of this hypothetical County Water Board. No amount of rationalization can dispel that simple, brutal fact.

Finally, I find the blog Torrentfreak's response to this new steal-don't-buy extension very telling. Ordinarily, Torrentfreak celebrates almost all piracy. But not this time. Instead, Torrentfreak's reaction could be paraphrased as, "oh no, if piracy is too quick to harm legitimate distributors and intermediaries--instead of just artists and their funders--then someone might actually do something about it!"

Sadly, there is probably some truth in that. Fortunately, I suspect that most legitimate distributors and intermediaries are already farther down the learning curve than the Internet nihilists suspect.

For example, a federal judge has reportedly held that Boston University (BU) is such an incompetent internet-access provider that it cannot disclose the identities of allegedly infringing users of its network. In London-Sire Records, Inc. v. Does 1-4, Judge Gertner's recent order granted BU's "Motion to Quash" because "[BU] has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty."

Perhaps the U.S. Departments of Justice and Homeland Security should explain the broader implications of this ruling to BU before clumsy efforts that coddle student piracy help get someone defrauded, molested, or killed. BU's IT Department might also consider the potential legal implications of acts that tend to conceal the identity of lawbreakers. See, e.g., 18 U.S.C. §§ 2, 3, 4, 241, 307, and 2319.

For copyright owners, the news is mixed: Deterring campus piracy at BU may now become either cheaper or easier. London-Sire could suggest that BU has deliberately or negligently engineered a situation in which private parties just cannot prevent users of BU's network from committing even the most pervasive, deliberate violations of their federal rights. But if so, then BU may have proven that on its campus, copyrights must enforced by federal law enforcement agencies with wiretapping and criminal enforcement powers. Ironically, in Grokster, BU librarians argued for precisely this result--the criminal prosecution of BU students who infringe copyrights. Heaven knows what they do to students with overdue books.

Fortunately, BU's incompetence may thwart its bloodthirsty librarians' call for the prosecution of BU students. U.S. providers of internet-access services would have to be fools to fail to take the minor measures that qualify them for the so-called "conduit ISP" safe harbor of 17 U.S.C. § 512(a) that can protect them from almost all liability for third-party infringing uses of their networks. In effect, London-Sire seems to hold that BU's network was designed and administered by fools.

To qualify for the § 512(a) conduit safe harbor, an Internet-access provider must comply, at most, with three simple obligations:

• First, it must "reasonably implement" a policy for terminating subscribers and account holders "who are repeat infringers."

• Second, it must arguably show that it could comply with an injunction issued under § 512(j)(1)(B)(i) that requires the provider to cease providing access to someone "using the provider's service to engage in infringing activity."

• Third, it must not "induce" infringing uses of its network as in MGM Studios v. Grokster.

London-Sire suggests that BU may be violating all of these obligations. If BU cannot reliably identify an accused infringer, then it has necessarily failed to "reasonably implement" any sort of termination policy. Nor could it reliably comply with a § 512(j) injunctive order.

And as for inducement, that issue could be worth pursuing, though it would require extensive discovery. For example, in Grokster, the Supreme Court imposed inducement liability against online service providers who designed their networks to ensure that they could not effectively identify, or terminate the accounts of, infringing users. In the aftermath of Grokster, it seems quite telling that BU managed to design itself into the same position as the intentional-inducer defendants in Grokster. Nor is BU's affection for file-sharing programs easily explained. Some of these programs are almost surely compromising the privacy many of its students, and they may also be causing its employees to disclose educational records in violation of the Family Education and Privacy Rights Act (FERPA)--for reasons explained here and here. Universities that allow unrestricted use of file-sharing programs that create proven threats to personal and institutional privacy--while rarely being used for any lawful purpose--hardly seem genuinely concerned about anyone's "privacy."

Copyright owners seeking to deter infringing uses of BU's network may thus still have a viable civil enforcement option. They could announce that--in the hope of avoiding having to refer civil claims for criminal prosecution--they were instead suing Boston University for direct, secondary, and inducement liability for all infringing uses of its network. Like other copyright owners who have been forced by irresponsible online services providers to use civil lawsuits to remediate online infringement, they could remind the world that their goals were to deter piracy--not to file lawsuits--by offering generous terms for settlement, perhaps even offering to limit the relief requested to mass injunctive relief under § 512(j)(1)(B)(i).

Finally, Boston University's debacle should not overshadow the efforts of those colleges and universities that have actually begun working constructively with technologists and copyright owners in order to restore the rule of law on their campus networks. Many interesting experiments are underway, and I am looking forward to hearing more about their results.

Overall, I thought Prof. Lessig made a good case regarding the benefits of "remix culture" and why copyright law should leave breathing room for the various derivative works of amateur creators. On the other hand, Lessig still too often blurs remix culture with "ripoff culture" (i.e., those who aren't out to create anything new but instead just take something without paying a penny for it).

To solve that latter problem, Lessig again endorses a proposal that William Fisher, Electronic Frontier Foundation, and others have made for collective licensing of all online music, but he fails to drill down into the devilish details. He says, for example, that "by authorizing a simple blanket licensing procedure, whereby users could, for a low fee, buy the right to freely file-share" we could "decriminalize file sharing." (p. 271)

I respect the fact that Lessig is at least acknowledging a problem exists and proposing a solution to it, but the collective licensing approach will be anything but "simple" in practice. As I have pointed out here before, collective licensing proposals and efforts almost always become compulsory in practice. They inevitably involve government mandates to determine (1) who pays in, (2) how much they pay in, as well as (3) how much gets paid out and, (4) who gets the money.

And there are still more questions to consider about collective licensing. For example, how do we restrict free-riders who attempt to evade the blanket charge the rest of us are paying? How would we deal with ISPs who refused to play along and embed such a fee in their monthly bills? (Of course, if the fee was reasonable, many ISPs would likely be willing to pass it along to their customers in exchange for freedom from future copyright liability. After all, some ISPs have already expressed an unwillingness to play the role of copyright cop, so they might initially look favorably on a blanket licensing system. But they might still need to engage in some filtering efforts to determine who is downloading what).

There are many thorny questions about the fairness of imposing a blanket fee on all online users even if they don't listen to any music, or those who would be offended at the prospect of being forced to pay for certain types of music (think of grandmas paying for gangsta rap). On the opposite end of the equation, there's the question of fairness to artists who may not want to surrender the rights to their musical creations at government-set terms and rates. Finally, what about other types of media creators and distributors? If we're going to have a blanket fee for online music, why not movies, television content, video games, and everything else?

Thus, while I appreciate Lessig's argument in the conclusion of the book about "recognizing the limits of regulation," it's important to realize that collective / compulsory licensing introduces a different layer of regulatory complexity and that we will need to deal with many of the same challenges we're trying to deal with under the existing copyright system. I would have liked to see Prof. Lessig explore these challenges in greater detail in Remix.

Nonsense: I stand by my paper because Mr. Masnick and "others" failed to quibble successfully even about details wholly tangential to its main argument. As Mr. Masnick's post indicates, his quibbles claimed that I had unfairly portrayed Lessig as a "communist sympathizer." But my paper said:

To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally 'communists' or 'socialists....' But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.

Mr. Masnick's quibbles thus consisted of claims like this one, in which Mr. Masnick--who runs a website that often criticizes his government--claimed that he would have more "effective freedom," (as Lessig put it), in the failed communist state that controls the heavily government-filtered region of the Internet called "NamNet":

The biggest difference in terms of freedom between Vietnam and America is the ability of the government to effectively execute its laws. Vietnam is, no doubt, far less efficient at executing its tyrannical laws than the United States, thus reducing many of them to being little more than bloviating as far as many average Vietnamese need concern themselves with the law.

But see Access Denied: The Practice and Policy of Global Internet Filtering 155 (Ronald Deibert, et al., ed., 2008) ("Of countries filtering political content, China, Myanmar, and Vietnam blocked with the greatest breadth and depth....").

Not even worshippers of the graven idol of Lessig should pretend that the effects of decades of totalitarian terror inflicted by a dictatorship upon its own citizens can be reasonably characterized as a form of "effective freedom." The Black Book of Communism records the fate of Vietnamese poets who criticized censorship--and the fate of Vietnamese who did nothing at all:

As in Beijing, people were found guilty simply because they had been accused by the Party, which never made mistakes. Therefore the best response was often to do what was expected of you: "It was better to have killed your father and mother and admitted it than to say nothing and to have done nothing wrong."

More contradictions of Messrs. Lessig and Masnick's bizarre claims about the relative "effective freedom" of Vietnamese and Americans can be found here, here, here, here, here, here, here, here, here, here, and here. Sadly, those links may not work for those who must actually endure the "effective freedom" of "NamNet."

In short, Mr. Masnick and others argued that reasonable people must agree that Lessig's claim that people terrorized for decades by their totalitarian government have more "effective freedom" than Americans was just a reasonable, interesting, morally neutral claim about the difference between the "law on the books" and the "law on the street." Mr. Masnick even argued that Lessig was thus "showing the problems with US regulations, something I would think you would endorse."

That is absurd. In Code, Lessig argued, in effect, that if a failed totalitarian state has so terrorized its citizens that they smile even though there is "barely any infrastructure" and kill their parents upon demand, then those citizens who have learned they they must always submit to or avoid their incompetent dictators enjoy "effective freedom" superior to that enjoyed by Americans. I cannot agree that anyone can rationally characterize the aftereffects of totalitarian terror as "effective freedom"--much less agree that the potential deregulatory effects of such terror are somehow relevant to the implementation of technology policy in 21st Century America.

On page 4 of Code, Lessig characterized the reign of Stalin as "bland communism." Mr. Masnick argued that because Lessig mentioned "neon signs" along with many basic state functions like caring for the elderly and preventing violence, reasonable persons must conclude that Lessig referred only to the "aethestic sense" of Stalinism. But if that was what Lessig meant, then why was he lamenting its passing? Mr. Masnick's argument coincides with neither the text of Code nor common sense.

Sartre once argued that Stalin's crimes had to be downplayed least they discourage the workers. Albert Camus then allegedly ended their friendship by replying, "the truth is the truth, and denying it mocks the causes both of humanity and morality." Personally, I still conclude that Code mocked the causes of both humanity and morality. And that I can reasonably and fairly support my claim that Lessig tends to downplay the hazards of concentrated governmental power by quoting his nauseating mischaracterizations of Soviet and Vietnamese communism.

Frankly, I ended the last iteration of this inane "debate" because it seemed to pointless to keep beating Mr. Masnick's dead horse in a debate that was only generating heat, not light on a point not central to my paper's argument. Sadly, I now see that Mr. Masnick may have mistaken that mercy killing for a victory.

So be it. When I have nothing better to do, I will exhume this stupefying "debate" and further defend my claim that reasonable people can fairly critique Lessig for lamenting the end of Stalin's "bland communism" and praising the "effective freedom" allegedly enjoyed by the cowering victims of a terror-wielding state so incompetent and repressive that it had "barely any infrastructure." And when I do, I will ask Mr. Masnick to explain why millions of boat people risked their lives to escape the "effective freedom" that Mr. Masnick and Professor Lessig--but no one else--can find so intoxicating and liberating.

Finally, I note that that Mr. Masnick's post illustrated his own rhetorical style by linking to a post in which he had claimed that a PFF Fellow argued that "fair use harms innovation" because he said that we should not repeat the Grokster fiasco of distributing tools that could be used for fair use, but would actually be used mostly to infringe. And then Mr. Masnick claimed that because I just did not provide enough "context" to show why Lessig was lamenting the passing of Stalin's "bland communism" and praising the "effective freedom" of cowering victims of totalitarian terror, I thus wrote "one of the most ridiculous attack dog papers we've seen."

That seems to suggest that Lessig received from me better treatment than he would have received had Code stopped downplaying Stalin, praising terror, and calling for government control of the Internet and started defending the anticircumvention provisions of the DMCA--an act that could actually have offended the sensibilities of Mr. Masnick.

Mr. Masnick claimed that my paper challenging the logic of the recent ruling in Thomas was an "attack on the judge in the Jammie Thomas trial."  That was wrong: the Thomas opinion was unreasoned and unreasonable, but its author tried hard to correctly adjudicate the case--he even solicited amicus briefs.  But he was betrayed: the Defendant and her amici just regurgitated anti-copyright arguments with little regard for their merits or capacity to co-exist within a reasoned judicial decision.  As in Grokster, such tactics succeeded--at the district court.

Nevertheless, I did appreciate Mr. Masnick's comments on my paper--if only because they clarified why we usually disagree about copyrights.  Mr. Masnick claimed that, PFF "has called itself a 'free market' think tank [though] it appears to be anything but free market when it comes to intellectual property issues.  For years, it's been a huge supporter of strengthening government granted monopolies [sic]...."

I do favor granting artists enforceable exclusive rights, (a.k.a. "property rights"), in their works--even if Masnicks call those rights "government granted monopolies."  I do so because market competition between producers of a socially valuable resource can occur only when producers possess governments-granted, practically enforceable property rights in the resources that they produce.  This is a point missed by a few IPR opponents: We can only use market mechanisms to facilitate the production of expressive works if producers of those works have enforceable exclusive rights in the copies of the works that they produce.  No exclusive rights means no market competition to encourage and allocate the production of expression.  To quote Professor Carol Rose:

[P]roperty mobilizes self-interested humans to labour as nothing else does..... That is, property "internalizes the externalities of labour, concentrating its fruits on the labourer himself."  As Richard Posner has... remarked, "All of this has been well known for hundreds of years."

Apparently, Judge Posner was unaware of the alternative reality called "Techdirt." 

For example, did Mr. Masnick conclude--as Thomas did--that one ambiguous sentence of legislative history overcomes the "strong presumption" that the Copyright Act's undefined statutory term "to authorize" has its ordinary meaning?  And if so, then how could he conclude that far more plentiful and powerful extrinsic evidence fails to show that "to distribute" was intended to have a specialized meaning?   Did Mr. Masnick conclude--as Thomas did--that the dictionary-definition of non-binding dicta becomes "binding precedent" when associated with one of an appellate court's three alternative holdings?  And if so, then how could he conclude that the Supreme Court's alternative holding in Tasini was not a binding precedent?  These and other challenges await those who grapple with the actual substance of the paper. 

Mr. Masnick's own "analysis" thus consisted mostly of ad hominem attacks: essentially, he argued that I must be wrong because "we" at Techdirt have often criticized the Progress and Freedom Foundation. 

But then Mr. Masnick mistakenly disclosed the substance of a TechDirt critique: He bragged that "we" at Techdirt claimed that a PFF Fellow argued that "fair use harms innovation" when he claimed that we should not repeat Grokster by letting the possibility of fair use excuse the distribution of devices that will inevitably cause pervasive infringement.  Apparently, this silly charge was the most devastating PFF-critique that Mr. Masnick could exhume from TechDirt's ceaseless effluent.

Then Mr. Masnick made his truly fatal error: He digressed briefly into the substance of Thomas.  Mr. Masnick said, "In typical Sydnor fashion, not only does he claim that the judge was wrong, he makes the judge out to be totally off the reservation in making such a ruling, claiming that the judge 'misread or disobeyed precedents, federal treaties, scholarly reviews and the three branches of government.'" 

To be clear, though Mr. Masnick seemed to be quoting me, he was not.  He was just making a mistake often made by bloggers who derive their knowledge of their source materials from illiterate sentences cut-and-pasted, without attribution, from other blogs.

Nevertheless, that illiteracy did capture Mr. Masnick's main objection to my paper: Mr. Masnick argued that if some experts, (courts and scholars) have concluded that the Copyright Act does not provide a making-available right, then Thomas cannot "be totally off the reservation in making such a ruling...." 

People who can think for themselves call this the fallacy of argumentum ad verecundiam.  Resort to it can be deadly.  For example, in Grokster, 79 professors of intellectual law made arguments so absurd that they were rejected by the Defendants at oral argument and then by all 9 Justices of the Supreme Court.  For two reasons, Mr. Masnick's resort to this fallacy was particularly unwise. 

First, Mr. Masnick wrongly claimed that lots of published scholarship and many judicial opinions conclude that U.S. law does not provide a making-available right.  But the existing analyses to that effect are generally sparse, or passing and conclusory (like the Nimmer sentence quoted in Thomas).  As a result, Thomas repeated an error that has affected all making-available denials that I have seen. 

Denials must conclude that extrinsic evidence (e.g., legislative history), shows that in Section 106, "to authorize" was meant to have a specialized, (rather than ordinary) meaning.  But they must also conclude that extrinsic evidence fails to show that "to distribute" was meant to have a specialized meaning.  Unfortunately for them, the extrinsic evidence indicating that "to distribute" was meant to have a specialize meaning is far more plentiful and powerful than the one ambiguous sentence of legislative history that could--if construed unlawfully--suggest that "to authorize" may have been meant to have a specialized meaning. 

The same rule of law must govern the interpretation of "to authorize" and "to distribute"--both infinitives were enacted at the same time, by the same Congress, in the same sentence of the same section of the same Act.  Consequently, making-available-right deniers must identify some principle of law that could--if consistently applied, produce their desired result.  So far, I am aware of no one--in Thomas or elsewhere--who has done so.  Until someone does, the case against a making-available right remains unreasoned and inexplicable.  I discuss why in more detail here.  

Second, Mr. Masnick argued, in effect, that I overplayed my hand and discredited myself by arguing that reasonable people could not reasonably disagree about whether the Copyright Act provides a making-available right.  But Mr. Masnick got his facts backward--that was precisely what I criticized Thomas for doing.   

Mr. Masnick forgot that Thomas was unique: it was the first published judicial opinion that concluded that U.S. law provides no making-available right after confronting a critical objection: assuming, (as courts do), that Congress and the President exercise their Treaty and Foreign Commerce Powers competently and in good faith, then multiple Presidents, Congresses and expert agencies have, for over forty years, repeatedly construed the Copyright Act to provide a making-available right. 

Thomas agreed that this triggered a "deference doctrine" far older than the one adopted by the Supreme Court in Chevron.   Thomas held: "The Court... acknowledges that, given multiple reasonable constructions of U.S. law... the Court [must] adopt the reasonable construction that is consistent with the United States' international obligations."  Those "obligations" require the U.S. to provide authors with the exclusive right to make copies of their works available over the Internet.   Thomas thus concluded that everyone who has interpreted the Copyright Act to grant a making-available right must have been unreasonable.

Persons like Mr. Masnick always try to pretend that they are the reasonable center that must thanklessly repulse the raving zealotry of their unreasonable, biased opponents--hence Mr. Masnick's carefully posed Sydnor-went-too-far argument.  But Mr. Masnick forgot that Thomas had foreclosed his favorite pretense. 

So let me be very clear.  If Mr. Masnick agrees that a reasonable person could conclude that U.S. law provides a making-available right, then he concedes that my paper correctly concluded that the reasoning of Thomas was indefensible.  Mr. Masnick can only attack my paper and defend Thomas's reasoning if he decrees that only the unhinged--the unreasonable--could disagree with his preferred interpretation of the Copyright Act.  So, Mr. Masnick, do you agree that a reasonable person could conclude that the U.S. Copyright Act provides a making-available right?

Mr. Masnick also claimed that "most of the cases these days seem to be going against Sydnor's interpretation, which hardly makes it 'inarguable' or as crazy as the paper makes out."  Wrong: "most" of the existing cases support my argument. Footnote 77 of my paper cited 21 cases that have adopted interpretations of the Copyright Act that would provide a making-available right. 

Perhaps Mr. Masnick can cite 22 cases that have interpreted the Copyright Act to deny a making-available right.  But Mr. Masnick's favorite blog reported that only Thomas and one other case do so.  Off the top of my head, I can think of at least 3 cases that do so--though there could be 4, were one to count dictionary-definition dicta extraneous to one of three alternative holdings in a case about the interpretation of a contract.

[Copyrights] are different because they can equally be regarded as defining property rights. In a literal sense, if I have a property right to a particular piece of land, I can be said to have a monopoly with respect to that piece of land defined and enforced by the government.

It also seems absurd to give up so easily on a system of exclusive private rights that has been stunningly successful at encouraging the production of a vast array of expressive works. Indeed, I have always suspected that the most important--yet underanalyzed--question in copyright law is this: Why, in the latter two-thirds of the 20th Century, did the U.S. transform itself from a net importer of expressive works into the world's leading creator and exporter of expressive works?

This really was a remarkable change. In 1840, one of our first and best friends in Europe, Alexis de Tocqueville, titled an entire chapter of Democracy in America as follows: The Example of the Americas does not Prove that a Democratic People can have no Aptitude and no Taste for Science, Literature or Art. A century later, in 1940, the U.S. situation had begun to become radically different.

When you start trying to figure out why, it becomes obvious that untangling the potential influences will be no small task. Certainly, industrialization and increased rule of law play a huge role, and it certainly could not have hurt that the U.S. did not play host to two World Wars. Nevertheless, it remains difficult to believe that these factors alone explain the shift. Moreover, if you look at what the U.S. was doing differently from most other nations, two potential factors of interest emerge.

First,U.S. copyright law provided both criminal penalties and deterrent civil remedies, (i.e., statutory damages) throughout the period of interest. These were potentially significant differences. Most countries derive their legal systems from the Continental, (or civil-law) tradition, which, by default, tend to award contract-like damages for most civil wrongs. If you look at the copyright laws of many civil-law countries, it soon becomes obvious that absent criminal prosecution or an unusual patent-like situation in which an injunction could have highly punitive effects, infringement might often be an economically rational choice. In short, U.S. law may have been uniquely well suited to create a functional private market for expressive works based upon exclusive rights that were, as a practical matter, relatively enforceable.

Second, the U.S. differs from most other countries by relying heavily on indirect, rather than direct, government subsidies to encourage the growth of both market and non-market mechanisms for the production of expressive works.

In other words, the U.S. has no Ministry of Culture and tends to support expression not through direct government funding of the creation of particular works, but through indirect incentives to create--like tax-exemptions for universities, charitable organizations that support the arts, private foundations, and tax-incentives for creative activities like film production. Economist Tyler Cowen discusses these mechanisms in his books Good and Plenty and In Praise of Commercial Culture.

In short, the critical difference for the U.S. may be that we have tended to encourage the production of expression through mechanisms that more strongly tend to encourage creators to please private, rather than governmental, tastes--be they those of wealthy private patrons or private markets.

I have no doubt that we will need to continue to think carefully and critically about how to structure copyrights and infringement remedies in order to find some way to reconcile the proven creative potential of private rights in expressive works with the generative potential of the Internet and other interactive, digital communications networks. But I also have no doubt that skipping the hard part about critical thought and defaulting to the easy solution--more use of the inflexible, technology-specific compulsory licenses that made it needlessly difficult to get legal music onto the internet--is a bad idea.

"If the [iTunes music store] was forced to absorb any increase in the ... royalty rate, the result would be to significantly increase the likelihood of the store operating at a financial loss -which is no alternative at all," Cue wrote. "Apple has repeatedly made it clear that it is in this business to make money, and most likely would not continue to operate [the iTunes music store] if it were no longer possible to do so profitably."

Kevin Allison over at the Financial Times' tech blog and Mike Masnick over at Techdirt identify compelling reasons why you shouldn't chuck your ipod just yet.

In the case of ERIPA, the usually sound impulse to avoid further federal spending is misplaced. Dynamic analysis of ERIPA's costs and benefits shows that ERIPA is better than "revenue neutral"--it is "revenue enhancing."

The Coalition Against Counterfeiting and Piracy made this point by commissioning the Tyson Report, a conservative economic analysis of the probable costs and benefits of IPR-enforcement reform.[2] The Tyson Report concluded that because counterfeiting and piracy annually drain about $225 billion from the U.S. economy, IPR-enforcement reforms that only slightly decreased counterfeiting and piracy over three years would increase U.S. output, earnings, and employment enough to increase federal tax revenues by $4.9 to $5.7 per dollar spent on reform, and generate another $1.25 billion in state and local tax revenues. For the American taxpayer, dollars spent on IPR-enforcement reform are investments that offer potential three-year returns of 490% to 570%, even when discounted to present value.

The entire paper can be found here.

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.

Personally, I hope that the U.K. opts for the graduated-response option. I realize that the usual "public-interest" groups say that disconnecting infringing users after repeated warnings is unfair, but, seriously, as compared to what? Forcing copyright owners to incur thousands of dollars filing John Doe lawsuits that must then be recovered from the families of teenagers and students unless copyright enforcement is to become a money-loosing proposition? Putting college students in jail? Those are the options available to deter illegal file-sharing under existing U.S. law. Are these options honestly less punitive or more enlightened than a graduated-response program? And by the way, libraries also provide access to knowledge, but if you don't follow their rules, they will throw you out and revoke your borrowing privileges. Is that unfair?

Granted, these "public interest" groups may really think that suing teenagers and imprisoning college students are good ways to enforce copyrights on the Internet. For example, in MGM Studios, Inc. v. Grokster, Ltd., the Internet Archive, Project Gutenberg, and many associations of university and law-school librarians argued that for-profit corporations that encourage or dupe teenagers or students into downloading infringing files should not be held liable for the intended consequences of the business models that gave those corporations "no product costs to acquire music" and "the ability to get all the music." Why? Because these guardians of the public interest argued that the teenagers and college students that these corporations induced could just be sued into ruin by copyright owners or imprisoned by the United States Department of Justice. So remember, university students, if your file sharing causes you to receive a prelitigation letter or subpoena from a copyright owner--or a visit from the FBI--do be sure to say "thanks" to the Internet Archive, Project Gutenberg, and your campus librarians: They all told the Supreme Court that bankrupting or imprisoning you should be the preferred means of enforcing copyrights on the Internet....

But for those inclined to think seriously about how copyrights should be enforced on the Internet, this new U.K. proposal ought to be viewed as a wake-up call, though it need not be a roadmap for what we should do here. It should, however, remind us that we have a serious problem, and that we need to think seriously about how that problem ought to be resolved.

History suggests that if we do think seriously about all of the interests involved--consumers, copyright owners, artists, and ISPs--then we probably can identify means short of compulsory licensing or levies that can reconcile those interests and significantly reduce piracy. Consider, for example, the balance that the Digital Millennium Copyright Act (the "DMCA") struck as to sites hosting user-generated content ("UGC").

UGC sites have enormous potential to encourage creative expression, but it would be difficult to imagine how they could operate were they governed by the strict-liability that copyright law has traditionally imposed upon distributors of expressive works. But simply exempting UGC site operators from liability for infringing third-party uses of their sites would only encourage piracy and shift copyright enforcement onto individual Internet users.

As result, the DMCA created a so-called "safe harbor" that exempts UGC site-operators from liability for monetary damages if they take several measures to redress or deter infringing third-party uses of their sites. The most important is the so-called "notice-and-takedown" requirement. It prescribes an iterative process of dispute identification and resolution. First, a copyright owner must notify a site operator of allegedly infringing content. The site operator must then take down the content and notify the subscriber who posted it. The subscriber must then decide whether to send a counter-notice to the site operator. If the subscriber sends a counter-notice, then the operator must restore access to the disputed content unless or until the copyright owner files a lawsuit and secures a court order requiring it to be taken down.

This takedown process can benefit all three parties--copyright owner, site operator, and even the allegedly infringing user. The copyright owner gains a means to halt infringing conduct that is faster and cheaper than a lawsuit. The site operator gains unprecedented protections against most infringement liability. The allegedly infringing user receives a warning about any potential conflict, and gets to chose whether to avoid or confront it. This takedown process has resolved countless potential disputes and prevented many lawsuits.

But make no mistake: The DMCA notice-and-takedown regime is not ideal--not for copyright owners, UGC-site operators, or UGC-site users. Copyright owners find themselves playing takedown-notice whack-a-mole in which the same infringing content is repeatedly taken down and re-posted. UGC site operators incur enforcement and response costs, and operators receiving too many notices may fail to qualify for the safe harbor. For users, the notice-and-takedown process may alert them to potential conflicts and let them decide whether to avoid them, but it may not always show them how to correct problems so the content can be safely re-posted.

Fortunately, Congress expected that even the imperfect incentives to cooperate imposed by the takedown process would encourage interested parties to devise innovative solutions superior to any contemplated back in 1998. See 17 U.S.C. § 512(i)(1)(B). Congress appears to have been right. Many copyright owners and UGC-site operators have entered into licensing agreements. Both YouTube and the parties to the Copyright Principles for UGC Sites are preparing to deploy advanced filtering technologies. The parties to the Principles are also devising more interactive dispute-resolution procedures. Consequently, not even important, backward-looking disputes like the Viacom-Google litigation should obscure the progress being made by copyright owners, UGC-site operators, and UGC-site users.

To be sure, the DMCA did not anticipate the rise of file-sharing piracy that cannot be reasonably redressed at the application level. Nor could the balance that the DMCA struck as to UGC sites just be "cut and pasted" into the context of access providers. Nevertheless, the case of UGC sites show that when the law has encouraged cooperative approaches--even imperfect ones--cooperation has occurred, improvements have been made, and enforcement lawsuits against consumers have been almost entirely avoided.

Finally, some will argue that the U.K. proposal is unfair to internet-access providers. That argument has weaknesses and strengths. To be sure, many claim that piracy has helped access-providers by driving demand for broadband access. For example, in Free Culture, Professor Lawrence Lessig argues, "The appeal of file-sharing music was the crack cocaine of the Internet's growth. It drove demand for access to the Internet more powerfully than any other single application. It was the Internet's killer app.... It no doubt was the application that drove demand for bandwidth."

But while piracy may have been indirectly benefited some access providers, it has also imposed significant costs and inefficiencies. For example, from the perspective of efficient network management, most ISPs should cache popular downloads. But doing so is extremely risky. The DMCA's caching safe-harbor, (§512(b)), like its other provisions, envisioned a web-based Internet: Consequently, it does not seem to "harbor" the caching systems needed by file-sharing networks. Nevertheless, vague reports alleging the use of caching have surfaced ever since the 2004 study, Is P2P Dying or Just Hiding?

But in any case, a simple fact remains: Broadband Internet-access providers were not the ones who worked hard to ensure that file-sharing piracy would become a problem that could not be redressed at the application level. If those who did try to make that problem difficult to remediate now expect others to clean up their mess, then that is unjust.

Nothing makes this point more effectively than the written testimony provided recently to a congressional committee by Mr. Mark Gorton, "the founder and Chairman of LimeWire, LLC, the makers of the LimeWire file sharing program":

The regulatory framework that surrounds the Internet has not kept pace with technical advancements, and currently, no effective enforcement mechanisms exist to address illegal behavior on P2P networks.

Internet Service Providers, ISP's, are a unique point of control for every computer on the Internet. Universities frequently function as their own ISP's, and a handful of universities have implemented notice based warning systems that result in the disconnection of users engaged in illegal behavior who ignore multiple warnings. These universities have sharply reduced child pornography and copyright infringement on their campus networks.

Similar policies could be mandated for all ISP's in the United States. However, these policies are unpopular with the telecom and cable companies who would prefer not have an enforcement relationship with their paying customers. The telecom industry has objected vigorously to previous attempts to involve ISP's in the enforcement process and it continues to oppose policies that would allow for the establishment of moderate, yet effective enforcement mechanisms to combat illegal behavior on the Internet.

The only institution in the United States with the power to mandate the creation of an effective enforcement mechanism to police the Internet is the United States Congress.

I believe that careful thought would reveal viable solutions to the challenges of file-sharing piracy more creative and less prescriptive than those proposed by LimeWire. And if distributors of piracy-and-pornography-prone file-sharing programs now admit that they have knowingly created problems that can only be resolved by imposing significant costs on many third parties, including copyright owners, internet users, and internet-access providers, I would respectfully suggest that federal law-enforcement agencies should take such admissions into account. And send a message....

I am still reviewing these new VBPs and comparing their provisions against the behavior of then-current versions of the file-sharing programs distributed by entities that purport to have developed these VBPs. Nevertheless, I can now summarize some key conclusions: I have serious concerns about the scope, substance, and credibility of these new VBPs.

CONCERNS ABOUT THE SCOPE OF THE VBPs:

The VBPs Unfairly Stigmatize All "P2P File-Sharing Software Developers": The VBPs seem to proceed from a absurd premise: They seem to presume that roses and skunks are equally likely to smell bad. The VBPs purport to apply to all "P2P File-Sharing Software Developers." I am aware of no data showing that risks of potentially harmful inadvertent sharing, (much less inadvertent sharing of "personal" or "sensitive" files), arise consistently from all "P2P File-Sharing Software."

To the contrary, the available data indicate that the worst of these risks seem to arise only from a narrow subset of programs whose similarities appear to arise more from the business models of their developers than from any actual reliance upon peer-to-peer networking or file transfers. For example, both the Gnutella-based LimeWire program and the BitTorrent-based program Joost are "P2P File-Sharing Software." But Joost and LimeWire do not even arguably pose similar risks to their users. Nevertheless, the VBPs treat both programs as if either could be equally likely to cause harm.

That is just plain wrong. It makes no sense to state or imply that all "P2P File-Sharing Software" should be painted with the same bad-actor brush.

CONCERNS ABOUT THE SUBSTANCE OF THE VBPs:

Compliance with the VBPs Is Unlikely To Significantly Reduce Potentially Dangerous Inadvertent Sharing: Regrettably, I expect that the VBPs--even if scrupulously followed--may have little or no effect on the prevalence of inadvertent sharing of personal data. The VBPs seem to presume that inadvertent sharing of "sensitive" data is still a problem that program distributors can cause or remediate at will. I suspect that this presumption is now dreadfully wrong.

For example, when episodes occurring in 2005 and 2006 returned my attention to the problem of inadvertent sharing of personal data, I embarked on a then-fruitless snipe hunt. When trying to determine why users of file-sharing programs might be inadvertently sharing personal files in 2005 and 2006, I first thought that the programs themselves were unlikely to be causing inadvertent sharing: After all, problems with program design had been rather extensively investigated--and purportedly resolved--back in 2002 and 2003. I thus assumed that inadvertent sharing must be recurring for some other reason.

I thus investigated the possibility that malware might be causing inadvertent sharing of personal files. The same factors that make piracy-prone file-sharing networks well suited for the distribution of infringing files also make them well-suited for the distribution of files infected with malicious code. Consequently, I assumed that inadvertent sharing might be recurring because file-sharing networks were distributing malware that was reconfiguring the file-sharing programs themselves. At the time, nothing came of those efforts: Searches of the usual data repositories did not reveal malicious programs that reconfigured popular file-sharing programs. Only after this "malware hypothesis" led nowhere did I look again at the programs themselves--only to find some dumbfoundingly familiar problems.

The VBPs returned my attention to malware as a potential cause of inadvertent sharing after I discussed them with the data-security company Tiversa, Inc. Tiversa's perspectives on file-sharing tend to be uniquely valuable. Tiversa's technology lets it look comprehensively at all activities occurring on multiple networks, and the monitoring and remediation services that it provide to its clients ensure that Tiversa often has unique, first-hand knowledge about the causes of inadvertent sharing.

After reviewing the VBPs, Tiversa's President, Mr. Robert Boback, reported that he was not optimistic about their potential to reduce inadvertent sharing. In particular, he cited the problem of malware--he reported that Tiversa has now encountered multiple forms of malware that reconfigure the sharing-related settings of popular file-sharing programs.

If so, then the VBPs are too little, too late. By perpetuating the problem of inadvertent sharing until identity thieves had years to realize how advantageous it could be to them, distributors of file-sharing programs have ensured that inadvertent sharing is no longer a problem that they can cause or remediate by changing the default settings of their programs.

The VBPs Seem Hopelessly Vague: The VBPs also seem very waffly and fuzzy--they are so vague and flexible that it will often be very hard to say whether any given program complies with any particular provision. Worse yet, they are often so vague that they seem to fail to engage the available data on the causes of inadvertent sharing. Indeed, preliminary analysis suggests that the VBPs could permit use of search-wizards, partial-uninstall features, and certain coerced-sharing features, including LimeWire's confusing "individually-shared-files" feature. I don't see how anyone can be expected to believe that these VBPs will really deter inadvertent sharing unless they clearly address all the problems that have been repeatedly called to the attention of distributors.

For example, the VBPs center around the notion that developers can deter inadvertent sharing by requiring users to take "Affirmative Steps" before they share "User-Originated Files." That sounds good--until one recalls that the more dangerous version of the KaZaA program condemned in the 2002 study Usability and Privacy: A Study of KaZaA Peer-to-Peer File Sharing also required its users to take "Affirmative Steps" before they would share "User-Originated Files." Indeed, partial-uninstall features excepted, so did the "features" condemned in the USPTO report, Filesharing Programs and "Technological Features to Induce Users to Share."

The VBPs Proceed from the Sometimes-False Premise That It Is "Safe" for Users of File-Sharing Programs to "Share" Downloaded Files by Default: The VBPs also look like a cynical half-effort to redress inadvertent sharing. To me, the difference between conscientious program distributors and cynical distributors is simple: The former are concerned about the safety of users of their program; they want to ensure that users do not inadvertently share any files that would tend to be dangerous to share. The latter are concerned only about themselves; they only want to ensure that users of their program do not inadvertently share the sorts of files that would be likely to attract adverse attention to program distributors from the media, Congress, or Supreme Court Justices.

Sadly, the VBPs seem to reflect the latter approach to inadvertent sharing: They divide all files stored on users' computers into two classes: files downloaded from the file-sharing network and all others, (the VBPs call this latter class "User-Originated Files"). The VBPs then proceed from the following premise: Sharing of downloaded files is presumptively "non-sensitive," safe and permissible by default, while sharing of User-Originated Files is not. In other words, the VBPs presume that users sharing downloaded files are not sharing "sensitive" files.

As applied to programs like LimeWire, that premise is demonstrably and deliberately false. As LimeWire CEO Mark Gorton testified, other than downloading of music, the only other "major use" of his program is downloading movies. Sharing files containing downloaded music or movies can cost from $750 to $150,000 per file. As a result, for persons of moderate means, the financial consequences of sharing those files are probably as bad or worse than the financial consequences of identity theft.

Worse yet, this very real threat of enforcement lawsuits is a risk imposed upon users deliberately by distributors of certain file-sharing programs: For example, in MGM v. Grokster, LimeWire went out of its way to blame copyright owners for failing to sue infringing users of its program. Subsequently, LimeWire then altered its program in ways that can make it more difficult for users to stop sharing downloaded files--thus ensuring that the risks of sharing downloaded files would tend to fall disproportionately upon those users who happen to be very young or otherwise particularly unsophisticated.

An article published recently by the Torrentfreak website illustrates the real-world consequences of these choices. The article reports on an interview with "Hannah," the pseudonym of a 9-year-old girl who uses LimeWire. The interview begins, "Everyone knows that a significant number of file-sharers are teenagers and young adults.... But what about the true kids--the under 10's?"

In the interview, "Hannah" says that she uses LimeWire, "Because you can put anything in and it will come up and you don't actually pay for it" and because "you can get good albums off there. Duh!!" When asked whether downloading music for free might be illegal, she replied, "Why would they put it [music] on the Internet ... if it was against the law?" She was then asked what would happen if one of her favorite artists, Sean Kingstone, sued her family or sought a settlement because she had shared his albums using LimeWire. She replied, "I'd say 'tooooo strict' and anyway he can't make me do anything. He's not the boss of me, he's the boss of Sean Kingstone." When asked what would happen if her family did not settle, she said, "Nothing. I'm too young to be charged by the government so he can't charge me."

"Hannah" has her facts dangerously wrong, but I can still sympathize with Hannah (and her family): She's just a little girl who has made the usually rational assumption that most adults don't distribute dangerous toys to children. Unfortunately, some adults who distribute certain file-sharing programs persist in distributing potentially dangerous toys to children--even after painting enforcement targets on their little foreheads. As a result, programs like LimeWire now jeopardize the privacy, reputations, and finances of the families of many thousands of "Hannahs."

Nor do the distributors of such programs simply lack any means to prevent their misuse or otherwise avoid the need for enforcement against consumers who share infringing files--deliberately or otherwise. They do have the means, but they have chosen not to deploy them.

Distributors of other file-sharing programs have now made this clear: Joost only distributes files authorized for distribution; Veoh uses forms of filtering; Pando uses something akin to a notice-and-takedown process. That doesn't mean that any of these programs are perfect, but it does mean that people using them are unlikely to face the financial and other consequences of an infringement lawsuit.

In short, a useful set of VBPs would have to address a very deliberately constructed reality: Inadvertently sharing files downloaded from some networks can be as presumptively dangerous and as "sensitive" as inadvertently sharing personal files. VBPs that refuse to confront this deliberately constructed reality are not worth the pixels they are printed upon.

Unless the VBPs Redress Inadvertent Sharing of Downloaded Files, Pedophiles Will Use Inadvertent Sharing to Avoid Conviction for Knowingly Distributing Child Pornography: Because the VBPs do not really address inadvertent sharing of downloaded files, they also fail to defuse a ticking time-bomb: Piracy-adapted file-sharing networks have attracted not only 9-year-old girls who share music, but also pedophiles who share child pornography. As a result, a slew of prosecutions are now underway--I counted scores of pending cases during my last sweep of LEXIS, and a public defender in New York told me that her office is now inundated with P2P child-porn cases. Unfortunately, the defendants in these cases have realized that inadvertent sharing can help them avoid conviction on the "knowing distribution" count that can result in serious jail time. Soon enough, inadvertent sharing--even of downloaded files--is going to deliver get-out-of-jail-free cards to pedophiles.

The VBPs would have to reflect a serious effort to prevent inadvertent sharing of downloaded files before they could stop this from happening. Indeed, even their half-efforts are already too late. For example, in United States v. Park, 2008 U.S. Dist. LEXIS 19688, *2 (D. Neb. March 13, 2008), the defendant used LimeWire to share, inter alia, a three-hour video that "depicted 'a female minor bound with a rope and being choked with a belt by what appeared to be an adult male.'" Nevertheless, the defendant secured a reduced sentence by claiming that he "lacked an understanding of the software and thus ... the knowledge to distribute the illegal wares that he possessed." Id. at 4.

To be clear: Distributors of piracy-adapted file-sharing programs rightly resent any claim that might imply that they intend to aid pedophiles. But that is not my point: Frankly, I cannot imagine why any distributor of even the most piracy-prone file-sharing program would intend to facilitate the distribution of child pornography, or, for that matter, malware-infected files, or classified government data.

Nevertheless, some brute facts remain: Actions often have consequences that--while not intended--are wholly predictable. The same attributes that make certain file-sharing programs attractive to persons who want to distribute infringing files predictably make those programs attractive to persons who want to engage in other illegal activities. It was thus utterly foreseeable--and foreseen--that malefactors other than infringers would flock to the accommodating venues thus provided.

For example, in 2003, the distributors of the KaZaA program admitted this when discussing the prevalence of malware-infected files on the FastTrack network: "As you would expect, when files often come from anonymous and uncertified sources, the risk of that file containing a virus greatly increases." They may not have intended to attract malware distributors, but they fully expected that the design of their network would do so nonetheless. Those choices created a network used largely for illegal purposes in which it becomes very important to be able to say whether any given user intended to "share" any given file because so many are unlawful to share. Reasonable VBPs would acknowledge that in such venues, the "sharing" of downloaded files is generally unsafe--it can result in the "sharing" of files that are "sensitive," within any reasonable meaning of that term.

CONCERNS ABOUT THE CREDIBILITY OF THE VBPs:

The VBPs Are "Déjà Vu All Over Again" for Concerned Officials or Citizens: Sadly, these new VBPs proceed from a false premise: They presume that distributors of piracy-adapted file-sharing programs can be reasonably expected to adhere to a completely optional set of inadvertent-sharing-related "best practices" that would require them to redesign their programs in order to prevent users from inadvertently sharing files. All-too-recent experience has eviscerated that premise.

For example, after the second-to-last round of congressional hearings on inadvertent sharing, (back in 2003), the trade association P2P United purported to redress inadvertent sharing by promulgating a mandatory Code of Conduct designed by distributors of file-sharing programs including the distributors of LimeWire. But the distributors who devised that "mandatory" Code tended to ignored it in practice while signing pious hymns to its virtues to congressional committees and federal agencies. Now, another trade association has released another set of now-completely-optional LimeWire-designed VBPs. With all due respect--and none is--these new VBPs accomplish precisely one result: They force everyone concerned about inadvertent sharing to stare straight down both barrels of an old saying:

Fool me once; shame on you. Fool me twice...."

Seriously: If distributors of piracy-adapted file-sharing programs treated their own mandatory Code of Conduct--and the well-being of users of their programs--like an irrelevant joke back in 2004, how can anyone believe that, in 2008, they will treat new optional VBPs with anything other than similar contempt?

And least the above seem unduly harsh, I can report that I have begun to compare the requirements of the VBPs to the behavior of the version of LimeWire that was available when the VBPs were released. This version of LimeWire does not appear to comply with the VBPs. Once again, the VBPs thus seem to be just a cheery promise that things may improve in the future.

I agree that voluntary self-regulation will be an indispensable tool that can let us redress many of the security and privacy challenges that will inevitably arise from fast-changing internet technologies without saddling those technologies with prescriptive, market-distorting regulations that quickly prove to be partially underbroad, partially overbroad, and quickly dated. But for that reason, there will be times when the only reasonable response to miserably failed efforts at voluntary self-regulation will be law enforcement--not the repetition of airy promises of even less-obligatory self-regulation.

For all these reasons--scope, substance, and credibility--I can take no comfort in DCIA's new Voluntary Best Practices for P2P File-Sharing Software Developers to Implement to Protect Users Against Inadvertently Sharing Personal or Sensitive Data.

In the aftermath of Grokster, I have been researching and writing about a problem that can be called "inadvertent file-sharing." It occurs whenever users of piracy-prone file-sharing programs end up "sharing" files that they did not intend to make available to thousands of strangers. Inadvertent sharing tends to make the news when reporters find users sharing highly sensitive personal or work-related documents.

But inadvertent sharing also routinely causes users to unwittingly share infringing files. Anyone inadvertently sharing personal files is also usually sharing their entire music collection, and users often inadvertently share only infringing files--one user might mistakenly think that "My Music" is a good folder for storing downloaded files, another just might not realize that downloaded files are "shared" by default, etc. Examples of my work on inadvertent sharing can be found in this USPTO report, in this congressional hearing, and in this follow-up report about a file-sharing program called LimeWire.

It has been suggested to me that documenting the problem of inadvertent file-sharing may not be that material to copyright law and policy generally. But an article in yesterday's Washington Post illustrates why I think that it may be useful.

This article reports that the latest person to have his sensitive personal data inadvertently shared by a LimeWire user was Supreme Court Justice Steven Breyer--author of the Grokster concurrence that would have interpreted Sony so broadly that it could "harbor" even the distributors of piracy-prone file-sharing programs like Grokster, Morpheus, and, well, LimeWire.

I regret to note that some commenters on this article treated this incident as if it were an somewhat-funny inconvenience. It isn't: For reasons that I explain below, inadvertent sharing can have financially devastating or deadly consequences, particularly if it affects a major U.S. official. For that reason, it is particularly important to understand whether the many incidents like this one many have been predictable side effects of a technology used mostly for illegal purposes.

In Grokster, Justice Breyer found that absent evidence of inducement, even the most piracy-ridden file-sharing programs would pass his interpretation of the Sony test. See 545 U.S. at 952 ("Grokster passes Sony's test"). For example, evidence in Grokster showed that 97% of the files that Grokster and Morpheus users actually selected for downloading were, or were highly likely to be, infringing. See 454 F. Supp. 2d at 985. Nevertheless, Justice Breyer found that these programs should pass the Sony test because, someday, their users might download infringing files only 90% of the time. 545 U.S. at 953-54.

And it is important to note that Justice Breyer did not find that, someday, 10% of the users of these programs would use them exclusively for non-infringing purposes. Rather, he found that Sony would harbor the distributors of file-sharing programs even if all users of their programs almost always uses them to infringe, so long as some users also make some incidental lawful uses, (currently perhaps has high as 3%), that could eventually rise to 10%. It is difficult to imagine that any real-world technology could actually fail to satisfy this standard, were it fairly applied.

In Sony, the Court said that its new test would have to "strike a balance between a copyright holder's legitimate demand for effective--not merely symbolic--protection... and the rights of others freely to engage in substantially unrelated areas of commerce." In Grokster, Justice Breyer concluded that this balance would be stuck by an interpretation of Sony that would deny copyright holders the ability to control areas of commerce 97% related to copyright infringement. To do so, Justice Breyer conducted a three-part analysis that culminated with a cost-benefit analysis in which he proposed that when assessing a technology like LimeWire, we should balance its costs--to copyright owners--against its benefits. 545 U.S. at 960.

Unfortunately, LimeWire's repeated failure to redress the long-known problem of inadvertent sharing has now exposed Justice Breyer, his family and many, many others to the real-world consequences of some omissions in Justice Breyer's cost-benefit analysis.

Justice Breyer's analysis recognized that technologies that are used almost exclusively for infringing purposes can impose profound costs upon copyright owners. But it failed to recognize that copyright owners will not suffer alone. Technologies that are used primarily for illegal purposes will tend to impose many social costs upon both their users and even innocent third parties, like Justice Breyer and his family.

For example, Justice Breyer may be wondering why it would even be possible for a file-sharing program like LimeWire to "share" files containing his financial data. After all, no reasonable person would deliberately "share" such files over the Gnutella network, and the CEO of LimeWire testified last summer that the only two "major use[s]" of his program were the sharing of music and movies. So why would a default installation of LimeWire share any other types of files?

LimeWire itself can answer that claim, but one explanation suggests itself: LimeWire probably shares financial data by default because distributors of file-sharing programs were hoping that judges might broadly interpret Sony: Groups like the Electronic Frontier Foundation counseled distributors that their file-sharing programs should share all types of files by default in order to buttress their theoretical "capacity" for non-infringing use. Consequently, LimeWire probably shared Justice Breyer's financial data by default so that judges broadly interpreting Sony could find that LimeWire also had a theoretical capacity to distribute files from the Prelinger Archive, even though it is almost never actually used to do that. See 545 U.S. at 954. Unfortunately, the resulting disconnect between what the program can do and what users expect it to do makes it much easier for users to make mistakes that impose severe costs upon themselves and others.

Justice Breyer may also be wondering why businesses do not adopt the very simple network-management techniques, like port-blocking, that would ordinarily let them prevent any use of of a file-sharing program on their corporate networks. Unfortunately, they cannot: Because programs like LimeWire are actually used for unlawful purposes almost all of the time, every reasonable business would block their use were it easy to do so. Perhaps not coincidentally, distributors of programs like LimeWire thus adopted techniques like port-hopping and tunneling that make it difficult and expensive to exclude their programs from a given network. In short, these programs are designed to go where they are not wanted. This imposes even more costs--not upon users of the program--but upon third parties who definitely DO NOT want to use the program. And like all the other costs discussed here, these costs appear to be mere side-effects of the high levels of illegal use prevailing today among actual users of programs like LimeWire.

Some research on inadvertent sharing might also lead Justice Breyer to ask another question: Why should inadvertent sharing still be a problem in 2008? Weren't the major causes of this problem identified long ago? They were, and that illustrates another cost that has just been inflicted upon upon Justice Breyer and many others--one that may have been best explained by the FBI back in 2003: When almost every consumer using a product uses it for illegal purposes most of the time, all our normal mechanisms for protecting consumers break down.

For example, consider what happened when a program briefly included on some lawfully-purchased audio CDs--the so-called "rootkit" DRM--was found to create a computer-security vulnerability. The vulnerability was quickly discovered, publicized, and within months, distribution of the problematic program was halted in a blizzard of consumer outrage, recalls, remediation efforts, and class-action lawsuits. In short, our systems for protecting consumers from risks worked quickly and very effectively--when consumers were lawfully acquiring an arguably problematic product.

Now consider inadvertent filesharing. Published research first identified some of its most important causes in 2002, and two congressional hearings revealed its dire effects in 2003. That consumer-safety information had only one effect: More distributors of more piracy-prone file-sharing programs deployed the very "features" that had been shown to cause inadvertent sharing--while inventing some new ones. For the next five years, such distributors testified that inadvertent sharing was a myth, told consumer-protection agencies that it had been remediated, and--when not actively exacerbating or perpetuating inadvertent sharing--repeatedly announced new "safeguards" that somehow managed to perpetuate this long-understood problem until it was still alive and well and able to harm Justice Breyer in 2008. In short, there was a complete system failure--when consumers were making mostly illegal uses of a very problematic product.

Justice Breyer and the other victims of this latest data-breech will also be confronting another cost that piracy-prone file-sharing networks impose upon third parties: Once data gets onto these networks, it becomes nearly impossible--or at least very expensive--to track or remove it. And it is critical to note that the nature of file-sharing networks does not require these expenses to be imposed upon those who do not their proprietary files on these networks. To the contrary, distributors of file-sharing programs could make it easy and inexpensive to remove unauthorized content from their networks. But if they did so, then it would also be easy and inexpensive to remove unauthorized copyrighted files. Perhaps not coincidentally, distributors have thus chosen to make it very difficult and very expensive to remove any unauthorized content from the networks that their programs create. Needless to say, those choices impose more costs upon anyone affected by inadvertent sharing.

Finally, the last set of costs that inadvertent sharing can impose upon its victims can be incalculable. Inadvertent sharing caused by programs like LimeWire can have horrific consequences because of another cost of some piracy-adapted technologies: The same factors that will tend to make a technology useful to persons who want to violate copyright laws will also tend to make it useful to persons who want to violate other laws. Consequently, piracy-prone file-sharing networks are also popular with identity thieves, malware distributors, pedophiles, and reportedly, potential would-be assassins of major U.S. government officials or their families (pp. 64-65).

But the catastrophic risks thus imposed can affect anyone--not just important government officials. In my testimony to Congress on inadvertent sharing, I used the following example to show why the difficulty of remediation and presence of multiple forms of criminal activity can greatly exacerbate the true social costs of inadvertent sharing:

To illustrate what [inadvertent sharing] can do, consider what would happen to my family if a visiting relative installed one of these programs on my home computer and tried to store downloaded files in its "My Documents" folder, so they would be easy to find.

I would end up sharing bank statements, tax returns, passwords for investment accounts, scans of legal, medical, and financial records, all my family photos, my children's names, addresses and social-security numbers, and a scan of the sign that designates the car authorized to pick my daughter up from preschool.

Oh, and I would also share over 3,000 copyrighted audio files ripped from purchased compact disks--I would share those too. With one mistake, I would be set up for identity theft, an infringement lawsuit or something far worse.

And what did I mean by "or something far worse?" I meant that inadvertent sharing could deliver data about my children to one of the vicious pedophiles that use piracy-prone file-sharing programs like LimeWire. See, e.g., United States v. Park, 4:06CR3097, 2008 U.S. Dist. LEXIS 19688, (D. Neb. March 13, 2008) (a LimeWire user shared videos of an adult raping a little girl "bound with a rope and being choked with a belt"); United States v. O'Rourke, CR-05-1126-PHX-DGC, 2006 U.S. Dist. LEXIS 1044 (D. Ariz. Jan. 12, 2006) (a LimeWire user was held to be a "danger to the community" because he shared many "extraordinarily abusive" images of "horrific child abuse" inflicted on "a very young girl, with hands bound and mouth gagged"); United States v. Postel, 524 F. Supp.2d 1120, 1123 (N.D. Iowa 2006) (a LimeWire user used shared child pornography to "groom" the girl that he molested for four years). Indeed, one researcher has already reported finding persons using piracy-adapted file-sharing programs to collect both sadistic child pornography and inadvertently shared data about particular children.

That is what I meant by "or something far worse." And that is one of the many reasons why I suspect that when they are fully informed, jurists will ultimately conclude that the true social costs of piracy-prone technologies will tend to vastly outweigh whatever benefits they might be imagined to provide.

I could go on listing more costs arising from Grokster-like file-sharing programs, but the above examples illustrate my point: In the past, debate about what Sony ought to mean has been largely abstract--we did not have real-world data about the results that different interpretations of the test might produce. Fortunately, Grokster has left lower courts with considerable flexibility to interpret the intended meaning and scope of the Sony test. Courts doing so can now be provided with some very practical, real-world examples of the full range of costs imposed by technologies used mostly for illegal purposes. I believe that many courts will find that information valuable and instructive.

In conclusion, I offer my sincere condolences to Justice Breyer, his family, the rest of the victims of this latest inadvertent-sharing-caused data breech, and to the victims of the needlessly numerous similar incidents that preceded it. At best, they will probably experience months of needless expenses and hassles--all as a result of a problem that could have been resolved six years ago.

Finally, I must reiterate two points that must always be stressed when discussing these issues. First, the fact that some miscreants used technologies that they called "peer-to-peer" to implement piracy-based business plans should not blacken the name of all technologies that actually do rely on real "peer-to-peer" networking. Personally, I doubt neither that real peer-to-peer networking technologies will play important roles in the distribution of legitimate Internet content nor that the technologies that will do so will not look like most existing piracy-prone implementations of allegedly "p2p" technologies.

Second, I suspect that what is now known about the ugly shenanigans of the Internet's would-be pirate kings may be just the tip of the iceberg. For example, one wonders how many of our vast supply of self-anointed technology savants could actually identify which popular piracy-prone file-sharing program was apparently designed to perpetuate the problem of inadvertent sharing while duping pesky journalists into believing that it had been resolved and while duping gullible Internet savants and jurists who broadly interpreted Sony into believing that the program's distributors had actually preserved the required façade of capacity-for-substantial-noninfringing-use.

I suspect that there is much still to be learned, though little to be admired....

Before replying to Mr. Patry's comments, I must first thank Mr. Patry for his many published works on copyright, and for his blog in particular. I don't always agree with him, but his views are always interesting and thoughtful: No reader can ask an author for more. I must also thank him for complementing the Progress & Freedom Foundation on its practice of disclosing the sources of its funding. Indeed, I must return his complement: On his blog, Mr. Patry discloses at least one source of his funding and acknowledges an attorney-client relationship with that source. For the record, I have no attorney-client relationship with any entity that funds PFF.

The above said, I must respectfully disagree with Mr. Patry on three issues raised in his comments.

Consequently, Mr. Patry's claim that I "gut the holding" of National Car Rental may mistake a disagreement about substance for a disagreement about the difference between non-binding dicta and precedent. Mr. Patry argues that if the distribution right involves a right to "'distribute' 'copies,'" then it cannot provide a making-available right because it cannot be infringed until copies have been distributed. I agree with his premise, but reject his conclusion. So if Mr. Patry is claiming that a judge who failed read the Copyright Act could rely on National Car Rental to find that the distribution right involves a right to "'distribute' 'copies,'" then I can agree with him.

But, frankly, I have never seen a federal judge issue an order raising a question that a review of the Copyright Act could resolve. And I agree with Mr. Patry that anyone reviewing Section 106(3) could resolve any question about whether the distribution right involves a right to "'distribute' 'copies.'" Consequently, I assumed that Judge Davis thought that National Car Rental could be binding for some other or additional reason.

For example, the text of the Copyright Act does not state that "actual dissemination" of copies must occur before one can infringe the exclusive right "to do and to authorize" distribution of copies to the public. My paper thus focused on the precedential value of National Car Rental's "actual dissemination" language. It never implied that judges must sift National Car Rental's holdings from its dicta to decide whether the distribution right involves a right to "'distribute' 'copies.'"

On Tasini: Mr. Patry's claims about Tasini are unpersuasive. Mr. Patry says that "there was no question in Tasini that actual physical copies of the articles were distributed." The Tasini Petitioners disagree. See Brief for Petitioners at 86 n.34, New York Times, Inc. v. Tasini, 533 U.S. 483 (2201) (No. 00-201), 2001 U.S. S. Ct. Briefs LEXIS 252 ("far from showing that the copies in dispute were regularly used to access their individual Articles as such, at no point in this litigation did respondents ever demonstrate that, apart from their own searches, anyone had ever used the ... copies in dispute to do so"). Nor did the Tasini Respondents disagree. Nor did the Supreme Court's find that actual, physical, unauthorized copies of all twenty-one of the Petitioners' articles were distributed to the public by each defendant.

Mr. Patry may be arguing that the Print Publishers sent "actual physical copies of the articles" to the Electronic Publishers. But while that appears to be wrong, see 533 U.S. at 489, such copies could only explain Tasini's finding that the Print Publishers infringed the reproduction right, not its finding that they infringed the right to "distribute" "copies" "to the public." See id. at 498. Nor could such copies explain its finding that operators of several online databases infringed the Petitioners' public-distribution rights: No evidence showed that subscribers of each such database actually copied (or even accessed) each of Petitioners' articles.

Tasini's holding on the Print Publishers further undermines Mr. Patry claim that the distribution right cannot confer a making-available right because it cannot be infringed until "copies" are "distributed" to the "public." But Tasini held: "It is clear, moreover, that the Print and Electronic Publishers have exercised at least some rights that § 106 initially assigns exclusively to the Authors: ... the Print Publishers, through contracts licensing the production of copies in the Databases, 'authorize' reproduction and distribution of the Articles, § 106." 533 U.S. at 498; see also id. at 505 ("the Print Publishers infringed the Authors' copyrights by authorizing the Electronic Publishers to place the Articles in the Databases") (emphasis added).

In Tasini, the Court thus held that the Print Publishers infringed the plaintiffs' distribution rights by "authorizing"--by permitting third parties to make copies of plaintiffs' works that would then be made available electronically to persons who might want to view or copy them. That act of contracting necessarily preceded the making of any "copies" authorized by the contracts--much less any contractually authorized act that actually "distribute[d] ... copies to the public." Tasini thus seems to reject Mr. Patry's claim that the distribution right cannot be infringed until copies are actually distributed.

In Thomas, the question is whether the jury could find that the file-sharing KaZaA user could infringe Plaintiffs' distribution rights by doing, well, what the operators of online databases did in Tasini--by acquiring unauthorized copies of protected works and uploading them into an online database that made those works available to the public for copying. After all, that is what someone does when they use KaZaA to "share," (i.e. make available), downloaded or ripped copies of Plaintiffs' sound recordings. Tasini seems is if I should have great or dispositive relevance in Thomas and similar cases.

Moreover, I do not see how Mr. Patry can so parsimoniously assess the precedential value of Tasini while so generously assessing the precedential value of National Car Rental. National Car Rental interprets a contract: It holds only (1) that the Copyright Act does not preempt contractual rights that are not "equivalent" to exclusive rights and (2) that a particular contractual right was not "equivalent" to the distribution right. National Car Rental does not hold that any copyright owners' distribution right was or was not infringed. Nevertheless, Mr. Patry claims that I "gut the holding" of National Car Rental, and I hope he means some holding relevant to Thomas. By contrast, Tasini's holdings identify when entities using online databases to engage in the unauthorized electronic distribution of copyrighted works first infringe the distribution right. Mr. Patry says, "Tasini has no relevance whatsoever to the issues in Thomas."

I remain unconvinced. I do not see how dicta extraneous to one of three alternative holdings in a circuit-court contract-interpretation case involving wholly non-analogous facts could have precedential effect in a pending copyright-infringement case while an alternative holding in a Supreme Court copyright-infringement case involving facts at least closely analogous and arguably indistinguishable from those at bar has "no relevance whatsoever."

On Statutory Construction and the Making-Available Right: I share Mr. Patry's outrage at unprincipled, result-driven statutory construction. But I think he directs it at the wrong side of the making-available debate. Personally, while I am not sure that it is the right result, I would be happy to assign ordinary meaning to the provisions of the Copyright Act that grant "exclusive rights to do and to authorize" a list of acts including "to distribute copies or phonograms to the public by sale or other transfer of ownership...." Doing so ensures that the Act grants a making-available right for at least one, and probably two, independent reasons.

If we grant ordinary meaning to the statutory term "to authorize," then the Act inarguably grants a making-available right. KaZaA users sharing files surely "authorize" the distribution of copies of those files to the public. But even were "to authorize" denied ordinary meaning, then I also think that a making-available right would exist if we grant ordinary meaning to the phrase "to distribute ... copies."

On this latter issue, Mr. Patry and I just disagree. He seems to believe that a right "to do" something cannot be violated until that something has been done. I do not. I think that a bookstore displaying a big stack of books topped by a sign saying "BESTSELLERS: 30% OFF" is "doing" distribution to the public even before a book is sold. The notion that a process of "parceling out" only encompasses a final transfer does not square with ordinary meaning.

To be sure, my argument about the ordinary meaning of "to authorize" is stronger than my argument about the ordinary meaning of "to distribute." But the latter (as applied to the sharing of files by KaZaA users) is more than reasonable enough to prevent anyone reasonable from accusing me of unprincipled statutory construction. After all, my interpretation has been advocated by many appellate courts--including the United States Court of Appeals for the Eighth Circuit. See United States v. Griffen, 482 F.3d 1008, 1011 (8^th Cir. 2007) (affirming the finding that defendant "distributed child pornography by making images of child pornography available to others"); United States v. Sewell, 513 F.3d 820, 822 (8^th Cir. 2008) ("the use of KaZaA to share child pornography is sufficient to uphold a conviction for the knowing distribution of child pornography") (citation omitted); cf. United State v. Clawson, 408 F.3d 556, 558 (8^th Cir. 2005) (holding that a defendant distributes child pornography within "the ordinary meaning of the term 'distribute'" by telling others how to find it); United States v. Williams, 128 S. Ct. 1830 (2008) ("One could certainly 'distribute' child pornography without expecting payment in return. Indeed, in much Internet file sharing of child pornography each user each participant makes his files available for free to other participants.") (dicta). These cases ought to be dispositive because the ordinary meaning of the Criminal-Code's clause, "distributes ... child pornography," 18 U.S.C. §§ 2252A, 2256, seems much narrower than the ordinary meaning of the Copyright Act's exclusive right "to do or to authorize" the distribution of "copies."

Finally, Mr. Patry wrongly implies that the making-available-right debate depends whether governing principles of statutory interpretation favor the use of ordinary meaning or legislative history to discern legislative intent. Almost any principle of statutory construction, consistently applied, shows that the Copyright Act grants a making-available right. I discuss these issues in more detail here, but a summary follows.

As applied to the facts of Thomas, "to authorize" has simple implications, so making-available skeptics must reject its ordinary meaning by discerning contrary "legislative intent" in weak, ambiguous legislative history: The skeptics must take one sentence of a committee report out of context and speculate that when that sentence expressed intent for "to authorize" to include a class of cases, it necessarily implied intent to exclude all other classes of cases otherwise within the ordinary meaning of "to authorize." The skeptics thus reject the ordinary meaning of "to authorize" by applying expressio unius to an ambiguous sentence in a committee report--a technique specifically and unanimously rejected by the Supreme Court. So when they interpret "to authorize," the skeptics reject "ordinary meaning" at the first whiff of arguably ambiguous legislative history.

And then, the skeptics get to "to distribute." Now copious, unambiguous legislative history and the Supreme Court agree that Congress intended for the distribution right to confer a right of "publication"--a term understood before 1976, in 1976, and today--to encompass a making-available right. Suddenly, the skeptics become diehard ordinary-meaning absolutists who bewail, bemoan, and spurn the legislative history that they just invoked to construe "to authorize."

When these feats of interpretive legerdemain are executed consecutively, they look result-driven and unprincipled: The skeptics end up arguing that courts can deny a making-available right by embracing the Copyright Act's legislative history when it is sparse and ambiguous and then spurning it when it is plentiful, clear and consistent. Eventually, I suspect that judges will accord such arguments all the respect that they are due.

Indeed, it is this lack of principle that ensures that diverse principles of statutory construction--if applied consistently--can produce similar resolutions of the making-available debate. If you are a consistently die-hard ordinary-meaning absolutist, then the Act grants a making available right for at least one, and possibly two, reasons. If you consistently follow what is probably the prevailing practice, (ordinary meaning controls absent clearly unambiguous legislative history), then the Act grants a making-available right for two reasons. And even if you consistently rely on legislative history to reject ordinary meaning, then the Act grants a making-available right for at least one reason.

Finally, I must stress the critical difference between giving "ordinary meaning" to terms in a statute and concluding that the whole statute has "plain meaning" as applied to a particular class of cases. For example, Justice Scalia is the Supreme Court's most vigorous proponent of according statutory terms their "ordinary meaning"--he would reject any resort to legislative history. But Justice Scalia agrees that statutes so construed can be ambiguous as applied to particular classes of cases, particularly when technologies change quickly. As a result, Justice Scalia is also the Court's strongest proponent of Chevron deference, which is implicated only when a statute's meaning is ambiguous.

The Copyright Act of 1976 was expressly intended to apply to technologies and circumstances unimagined in 1976. As time passes, we can be assured that there will many more classes of cases in which its intended meaning--regardless of whether its text is given an ordinary, specialized, narrow, or broad, meaning--will be ambiguous. To deny that is folly.

Unfortunately, making-available skeptics tend to do so. Perhaps they do so because they realize that when a statute's intended meaning is ambiguous, courts construe it to effect the underlying intent of the statute, and in light of a familiar list of binding or persuasive aids including legislative history, the views of expert agencies, the constructions accorded to the statute by the other Branches during formal law-making processes, subsequent legislation read in pari materia, and other rules of construction like the Charming Betsy principle.

In conclusion, I thank Mr. Patry for his comments and look forward to resuming debate on these, and any related, issues when I return to the office on July 7, 2008.