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.

Rick Sanders

Rick is the litigation half of Aaron & Sanders, PLLC; and, from 2012 to 2014, an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. Vandy also happens to be where he got his law degree in 2000. After graduation, he practiced at a major intellectual-property law firm in Silicon Valley for a few years. He returned to Nashville in 2004, where he worked for a large Nashville firm, practicing as much intellectual-property law as he could, but also a lot of commercial law. He left that firm in 2011 to start Aaron & Sanders with Tara Aaron, so he could practice intellectual-property law full time and work with start-ups and other non-institutional clients.