Rick Sanders has been quoted by the U.S. District Court of the Eastern District of Virginia, in a case holding that Cox Communications, Inc. did not have a sufficient repeat infringer policy in order to allow it to take advantage of the safe harbors of the Digital Millennium Copyright Act. (Cox would terminate repeat infringers, but then reinstate them immediately). In BMG v. Cox Communications, Inc., the Court however, agreed with Cox that Cox’s customers did not infringe copyright merely by making infringing materials available for download by others. In a footnote, the Court cited Rick’s article Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vanderbilt J. Ent. & L. 857, 865 (2013) for the point that there is no right of the copyright owner to restrict a customer making files available for distribution; only the actual distribution can be restricted by the copyright owner.

More about Rick’s theory on the “making available” right can be found here.

Tara Aaron

Tara helps clients across multiple industries and countries with licenses and disputes involving trademarks, copyrights, domain names, software, trade secrets, and privacy compliance. She earned her Certified Information Privacy Professional (CIPP) in U.S. Privacy Law in 2018 and in European Data Protection Law in 2019. Her clients include many technology start-ups, software developers, and website designers as well as long-standing institutional clients who come to her for representation in copyright, trademark, licensing and privacy. She also assists with the purchase and sale of intellectual property assets. She has on multiple occasions successfully obtained hijacked domain names for the rightful owners, and regularly negotiates service and technology agreements with the largest telecommunications and software providers in the country.