Unmaking of the "making available" right

Ten law professors have filed a brief in the American Thomas case supporting the argument that there is no "making available" right as such in the USA. In other words, without proof of actual downloading by someone other than the RIAA investigators, there should be no liability. Ms. Thomas was the single mother of two who has to pay $222,000 for downloading and "making available" nine songs, worth $9.91 on iTunes.

There is nothing in Bill C-61 to prevent such a travesty of justice in Canada. In fact, Bill C-61 could make the RIAA/CRIA dream of suing children and dead grandmothers even clearer and more viable in Canada than in the USA.

Full credit to the professors who took the time to do this. They are Annemarie Bridy, University of Idaho; Michael W. Carroll, Villanova University; Ralph D. Clifford, Southern New England School of Law; Thomas F. Cotter, University of Minnesota; Jon M. Garon, Hamline University; Stephen McJohn, Suffolk University; Tyler T. Ochoa, Santa Clara University; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia.

And full credit to the trial judge for taking it upon himself to consider whether he had made a "manifest error" in his jury charge that it was unnecessary to prove actual distribution to a third party. Unfortunately, for whatever reason, Ms. Thomas' trial lawyer apparently did not deal with this issue at trial.

If the liability for "making available" falls through in the USA, it would be even more absurd for Canada to adopt the principle as set forth in Bill C-61. And make no mistake. There would be law suits in Canada - lots of them. The music industry can't wait to get going. They failed and fizzled four years ago - and I'm proud to have represented CIPPIC and to have played a key role in making that failure happen.

But Bill C-61 could be CRIA's sweet revenge.

Let us hope that the RIAA/CRIA approach to copyright law as expressed so clearly in Bill C-61 is clearly stopped at the Canadian/American border. Let Canada's children sleep well at night and let Canada's dead grandmothers rest in peace.

HK