Prof. Susan Crawford brings news of an interesting twist in the Napster investment litigation (Distribution (II)). In a 4-page order, Judge Marilyn Patel dismisses an attempt by the plaintiffs to bring in a new standard for the right of distribution, "by making it available on a computer network accessible to members of the public," which was added to US Code as part of the recently signed into law Artists' Rights and Theft Prevention Act of 2005, but deals with infringement of works that have yet to be published. Read Patel's order: Memorandum & Order, Re: Plaintiff's Motion for Summary Judgement [PDF]. From the order:

If Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing so. Plaintiffs fails [sic] to identify anything in the legislative history of the ART Act, much less the statute itself, that suggests Congress' intent to clarify section 106(3) in such a manner. Instead, plaintiffs suggest that their "making available" interpretation of the distribution right is compelled by the fact the ART act imposes criminal liability on a class of infringing acts involving, inter alia, "the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public." ART Act § 103(a)(1)(C). Thus, according to plaintiffs, Congress must have implicitly recognized that civil liability for copyright infringement should be at least as broadly construed as the criminal offense defined by section 103(a)(1)(C).

Whatever the merits of this argument might be in the abstract, it is largely academic in light of the actual language of the ART Act, which plaintiffs conveniently disregard. That language makes clear that willful copyright infringement and "making [the infringed work] available on a computer network" are separate elements of the criminal offense defined by section 103(a)(1)(C). Thus, regardless of the manner in which a court interprets section 106(3) of the Copyright Act for the purpose of finding copyright infringement, criminal liability under the ART Act cannot be imposed unless such an act of infringement is proven beyond a reasonable doubt. This is hardly persuasive evidence of what the words of section 106(3) mean in the context of a civil copyright infringement action.

In any event, the court does not believe that the 109th Congress' views would affect the outcome of this action even if it had explicitly commented on the scope of the distribution right in the course of enacting the ART Act. The Supreme Court has repeatedly emphasized that such subsequent legislative history "is a hazardous basis for inferring the intent of an earlier Congress." [citations omitted] ... That is certainly the case here. If legislative history is to inform the court's interpretation of the Copyright Act of 1976, it must reflect the views of the members of Congress who enacted that statute into law. The opinions of members of the 109th Congress are of little, if any, relevance to such an inquiry and need not be considered seriously here.

This is very nicely and succinctly reasoned. Funny thing is, I think Congress should include "making available" as part of the distribution right. But then again, I think we should eliminate the right of reproduction all together, too. We certainly shouldn't expand the scope of the distribution right without balancing things out by narrowing or eliminating some of the other exclusive rights.

One also wishes the Judge Patel had spent a little more care with regard to the claims of direct copyright infringement in the original Napster case. Prof. Niels Schaumann does a good job of showing why the discussion wasn't sufficient: Schaumann on Direct Infringement in P2P.