The Various Views of Volitional Conduct

On July 15th of this year, the Copyright Office sought “further comments on the state of U.S. law recognizing and protecting ‘making available’ and ‘communication to the public’ rights for copyright holders.” The Office had solicited similar comments this past February, and a total of twenty-seven replies were filed at the time. After the Supreme […]

Making Available Revisited: Nimmer Did Not Change Its Tune

Cross-posted on the Copyhype blog. The making available issue takes center stage today on Capitol Hill as the House Subcommittee on Courts, Intellectual Property, and the Internet holds a hearing on “The Scope of Copyright Protection.” Copyright treatise author Professor David Nimmer argues for the making available right (testimony available here), and Tulane Law Professor […]

Tenth Circuit: Making Available is Distribution

Cross-posted on the Copyhype blog. Representing himself before the U.S. Court of Appeals for the Tenth Circuit, Andrew Diversey has managed to set a very interesting precedent (opinion available here or here). Senior Circuit Judge Terrence L. O’Brien, writing for a unanimous panel, held that when a library adds a work to its collection, indexes […]

Nimmer Changes His Tune: “Making Available” is Distribution

Cross-posted on the Copyhype blog. One topic of debate in copyright is over whether simply “making available” a file on a peer-to-peer network is itself a violation of the distribution right.1 The courts have been split on the issue.2 Professor Peter S. Menell explains the controversy: Interpreting “distribute” narrowly, some courts have held that copyright […]