Will Professor Nimmer’s Change of Heart on File Sharing Matter?

Download

Rick Sanders · 15 Vand. J. Ent. & Tech. L. 857

Abstract

In a significant reversal, the leading copyright treatise, Nimmer on Copyright, has changed its position on the controversial subject of whether merely making a copyrighted work available for distribution violates the distribution right—an issue most significant in the context of peer-to-peer file sharing. Nimmer on Copyright had previously concluded that the distribution right did not extend so far. It now embraces whole-heartedly the “making available” theory of copyright infringement. Courts and practitioners should not follow suit. First, the treatise relies heavily on legislative materials that predate the actual passage of the current Copyright Act. Second, it argues that the current distribution right encompasses the old publication right of the predecessor Copyright Act, and that the old publication right included offers for sale. It fails, however, to acknowledge that “publication” had two very different meanings under the predecessor Act, and it makes the mistake of conflating those two meanings. In the end, the question of the “making available” right is intractable and requires congressional action to set straight.