The Vanderbilt School of Law’s Journal of Entertainment and Technology Law (“JETLaw” to the cognoscenti) has just published Rick’s article, “Will Professor Nimmer’s Change of Heart Matter?” The article deals with a complete reversal of position in the leading and most influential treatise on copyright law, Nimmer on Copyright, on the issue of whether merely making available for sale or other distribution unauthorized copyrighted goods constitutes infringement of the distribution right. This issue, once very obscure, has risen in prominence in file-sharing cases, where rights holders are usually only able to prove actual distribution of a handful of sometimes thousands of unauthorized files on the alleged file-sharer’s computer. Rights holders would prefer that they need prove only that the unauthorized files were made available for download, but courts have generally (but not exclusively) held that proof of actual distributions is needed. The three leading copyright treatises used to concur with those courts, and were often cited in support of that position.
Nimmer on Copyright, however, in a break with the other two leading treatises, now takes the position that merely making unauthorized copyrighted goods available for distribution does, in fact, infringe on the distribution right. Rick’s article looks into Prof. Nimmer’s reasons for doing so, and concludes that, at a minimum, Prof. Nimmer was very premature to make such a reversal in a treatise (which is marketed as a sober recitation of the law, rather than a position paper).
When he gets a chance, Rick will blog a summary of the issues and his analysis.