S.B. 167 presented to Bush for signature
Senate Bill 167, the Family Entertainment and Copyright Act, was presented to President Bush today for signature. We've summarized the legislation in prior posts, and a general summary is also available from Congress.
One hot topic about the legislation is the fact that it criminalizes willfully "making available" pre-release content over the Internet. The bill would amend Section 506(a) of the Copyright Act to add the following to criminal infringement:
"by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution".
As discussed in a prior post as well as a thoughtful recent post by Susan Crawford, the issue of whether "making available" is a violation of the distribution right is unsettled.
You may recall that in 1995, back during the Clinton administration, the Commerce Department's White Paper on National and Global Information Infrastructure recommended amending the distribution right under copyright to expressly cover transmissions. This was resisted by ISPs and others who feared increased liability.
But later, in 1997, the U.S. signed two treaties in which the "making available" right is made express -- the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
For example, Article 12 of the WPPT, which applies to recorded music, conflates the distribution right with "making available" of copies for sale or transfer, subject to the first sale doctrine, while Article 14 of the WPPT states that:
"Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them."
Possibly due to the earlier controversy about amending the distribution right, the implementing legislation in 1998 for these treaties, the Digital Millennium Copyright Act (DMCA), did not include any amendments to this effect, and because the treaties are not self-executing, to date the "making available" language has not found its way into the Copyright Act. It should be noted that it is not necessarily required that these changes be made to the U.S. Code, insofar as the U.S. has some discretion in determining its compliance with treaty obligations, in the same way that the U.S. has not implemented wholesale "moral rights" legislation to comply with its treaty obligations.
Canadian law has taken another approach to the "making available" controversy in the context of music litigation, insofar as Canada has not signed the WPPT. The blog for Pam Samuelson's P2P law course at Berkeley has more on this.
Cathy Kirkman is a partner at Wilson Sonsini Goodrich & Rosati in Palo Alto, California. Her practice focuses on intellectual