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 […]