Copyright Office Decides To Rewrite Copyright Law Itself, Blesses A 'Making Available' Right That Isn't There

The Copyright Office has decided to take a stance on copyright law that requires two slightly odd things. First, it requires ignoring what the Copyright Act actually says and then, separately, it requires pretending that the law says something that it clearly does not say. That's pretty incredible when you think about it. For quite some time now there have been ongoing legal fights in the copyright world over whether or not there's a "making available right" in copyright law. The issue is actually super important. 17 USC 106 lays out the only six exclusive rights granted to rights holders under copyright. They are:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Now a quick reading of this would suggest that you've most likely violated 106(3), the "distribution" right (assuming it's not a situation where there's fair use or some other such defense), if you share a digital file. But there's a technical problem with this, which is that the "Definitions" part of the law says that the word "copies" only applies to "material objects." Digital files, as you might note, are not material objects. Now, to be clear: courts have almost universally rejected this argument when it comes up. Basically because it's inconvenient. But it is what the law says. But there's also a separate question here: what if you, say, had a file of a copyright-covered work, and put it in a folder that was "available" via a peer-to-peer network... but the file was never actually downloaded. Then what right listed above would you have violated? Notice that the distribution right not only appears to require distribution (which would mean the actual complete file transfer) but even limits distribution further to "by sale or other transfer of ownership, or by rental, lease, or lending." If there's no "transfer of ownership" -- such as if someone just makes a copy -- then is that distribution? Or is it just an issue that can be covered by 106(1)'s "reproduction" right? This is the big question around "making available." A number of people (generally speaking they come from the traditional copyright legacy industries) simply try to whitewash this whole thing and argue that simply having the possibility of distributing is distribution itself. Courts in the US have been very mixed on this issue. We've been covering rulings that have gone both ways for over a decade now. But should "making available" -- even if no actual distribution happens -- be considered "distribution" in light of both what the law actually says, and the basic knowledge of what "distribution" means? Lately, the "making available" crowd has been trying to force the issue, either making sure that "making available" is explicitly included in any copyright reform and/or by making sure it's in various trade agreements. And now the Copyright Office has weighed in on the matter insisting that, despite plenty of evidence to the contrary, "making available" already violates the distribution right. A key issue in this new paper is the WIPO Copyright Treaty (remember what I said about sneaking this issue into international treaties?). Article 6 of that treaty defines the "right of distribution" to include:

Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

It's noteworthy, of course, that a key reason for large parts of the WIPO Copyright Treaty was a way for Hollywood to push through the DMCA, which Congress had previously rejected. As the crafters of the DMCA are now totally proud to admit, after Congress turned them down, they ran to Geneva to put the same ideas into WIPO and then ran back to the US and got the DMCA approved in 1998. However, while the DMCA included a bunch of other stuff, it's notable that it di