Copyright Guru Changes Mind: Costs Lawyers Millions
The most important decision in the war to preserve copyright did not happen in a court room, a dorm room, or a protest. It happened quietly in the mind of an avatar of one the most referenced copyright scholars in history.
Last week, carrying the touch of his father, the son of noted copyright scholar Melville Nimmer, whose popular copyright treatise Nimmer on Copyright, is used as the building block by lawyers of most every copyright dispute, issued a statement on what constitutes “distribution.” This one interpretation could affect thousands of copyright cases.
Although the Jammie Thomas and Joel Tanenbaum cases have been in the forefront, the RIAA has sucessfully sued well over 10,000 P2P file sharers over the past decade under the premise that they illegally “distributed music protected by copyright.” Their position has always been that distributed meant “parted with permanently,” as per the definition in the US Copyright Act.
Lawyers defending P2P file shares have maintained that simply making music available on your hard drive is not the same as “distribution,” whereas the RIAA has insisted this is a distinction without a difference. Nonetheless this argument has sustained itself through several layers of appeals, which have, with rare exception, resulted in defeat for the defendants.
In the past, when courts have consulted Nimmer, the stated interpretation is always been that some effort is required to distribute. In other words (to use the common “applecart analogy,”) simply having stolen apples in a basket in front of your store and allowing passersby to take them, is not the same as “distributing” stolen apples. To distribute you would’ve had to do something pro-active, like handing apples to the passersby.
This past week however Nimmer’s son, David, came down squarely on the side of the RIAA, thus closing an important loophole/argument used by attorneys that has cost thier unsuspecting defendant/clients in several landmark hundreds of thousands in legal fees.
The story is well chronicled on the website Coppyhype,
“Several courts have consulted [Nimmer] when analyzing whether “making available” constitutes distribution. As recently as 2011, the treatise took the position that infringement of the distribution right requires actual dissemination of copies of a work to the public. But in the latest edition, Nimmer has changed his tune—the treatise now states that “making available” is distribution simpliciter.”
“Nimmer on Copyright,” has been cited in well over 3000 federal cases and is far and away the record-setting reference on interpretations of copyright. It is difficult to determine the domino effect that this change of heart will have on pending copyright cases, but few in the legal community would argue that this reversal is insignificant.