The “Making Available” Theory

We mentioned before that P2P file sharing without the copyright owner’s permission is a violation of the copyright owner’s distribution rights because the uploader distributes a copy of the music to the downloader. What happens if no one downloads a file? Is it an infringement of copyright to merely store a file on folder from which someone might download a file?

According to the RIAA, making files available for others to download (whether in a shared folder or on a P2P network) amounts to a distribution even if nobody actually downloads the file. While this theory, called the “making available” theory, is not supported by current copyright law (which requires that the file actually be downloaded in order to be considered an infringement), the RIAA is currently trying to get courts to recognize it as a form of infringement. To that end, the theory has been used in several cases recently, most notably in a case against Jammie Thomas, a single mother from Minnesota who was ordered to pay $222,000 in damages for making 24 song available for download via the KaZaa P2P network.

If accepted by courts, the “making available” theory poses several problems. First, it is based on a misreading of copyright law, as detailed above. Second, without an actual distribution of the file in question, the copyright owner suffers no harm. Yet, as the Jammie Thomas case illustrates, the copyright owner can still reap windfall damage awards. Third, the theory of "making available" frees owners from the responsibility of having to prove their case in court. Fourth, if accepted, the “making available” theory has implications beyond P2P file sharing--for example, radio broadcasters, including webcasters, could be accused of making music available for copying by simply transmitting that music. Broadcasters could then be forced to seek an additional license for distribution on top of the performance license that they already pay. A recent lawsuit against XM satellite radio shows that this is not merely a hypothetical fear.

Thankfully, recent court rulings have tended to discredit “making available” as a legitimate theory of liability. The judge in the Jammie Thomas case has decided to grant a new trial and reconsider the “making available” argument that resulted in the award.