“Making available” is not copyright infringement

At Fordham Law School’s annual so-called “Intellectual Property” Law Conference on March 28, 2008, Ray Beckerman of Recording Industry vs. The People debated Kenneth Doroshow, a Senior Vice President of the Recording Industry Association of America, a corporate label lobbying group.

An interesting point of contention was whether it ought to be considered copyright infringement to make copies of copyrighted works available when one doesn’t have license to distribute that work. The RIAA says “making available” is copyright infringement, as this reduces the work the RIAA has to do to successfully sue ordinary people who allegedly infringe RIAA’s client’s copyrights. Beckerman contends “making available” isn’t infringement; copyright holders should have to prove that an illicit copy of their copyrighted work was made, not merely offered. The moderator of the debate, Professor Hugh C. Hansen, the keynote speaker, Michael Schlesinger, and a lot of the lawyer-filled audience apparently believed that “making available” constituted copyright infringement.

They were wrong.

Beckerman explains:

[T]his panel discussion took place on the business day before Elektra v. Barker and London-Sire v. Doe 1 came down, both rejecting a making available right. And of course a month later Atlantic v. Howell was handed down, rejecting the ‘making available’ theory from pillar to post.

Read the transcript of the event. Unfortunately this transcript doesn’t include Schlesinger’s remarks but Beckerman summarizes those remarks just before the transcript.

1 thought on ““Making available” is not copyright infringement

  1. I participated in 3 panel discussions that day. Mr. Doroshow participated only in the “statutory damages” session. Mr. Schlesinger spoke in the “making available” session, but his remarks do not appear in the transcript for some reason. An index to the 3 discussions is here

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