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Years After Napster, General Counsel of U.S. Copyright Office Speaks on File Sharing

On a snowy evening, February 3, 2009, students and faculty of Columbia Law School braved the weather to attend the 22nd annual Horace S. Manges Lecture, presented by David O. Carson, General Counsel of the United States Copyright Office.

The talk, somewhat obtusely titled “Making the Making Available Right Available,” was a thoroughly researched argument for reading an additional “making available” right in U.S. copyright law, which would make it easier to find liability in peer to peer file sharing cases. 

Carson noted that his lecture came on the heels of the Recording Industry Assocation of America’s decision just a few weeks ago to wind down its litigation against individuals for peer to peer file sharing, which began years ago in controversial cases such as Napster and Grokster. 

Although he reserved opinion on whether the RIAA’s tactics were heavyhanded or an unwise business model, Carson felt that the lawsuits served an important function that could not have been accomplished by other means, by educating the public on copyright issues in file sharing.  He is disappointed, however, that the lawsuits did not serve another function.  “They have not served as a deterrent at all.  Today, file sharing is more rampant than ever.”

Carson is responsible for the Copyright Office’s regulatory activities, litigation and administration of the copyright law. Carson has been General Counsel since 1997, except from 2006 to 2008 when he served as Associate Register for Policy and International Affairs, also at the Copyright Office.

Carson led the audience through an intense and expansive review of federal court and appellate caselaw, international law and treaties, legislative history and criminal law to argue that an additional “making available” right should exist in U.S. copyright law, and stated that he hopes the judiciary will interpret the law this way.

“Technology has gotten us to a place where it has outstripped legal remedies.”

His talk will be published as an article of the same name in a future issue of the Columbia Journal of Law & the Arts.

Carson was met with contentious questions from a lively audience, who challenged his argument from many angles.  One such question came from a student, who asked simply whether having this additional legal remedy would actually deter file sharing given its widespread use.

Carson conceded, “File sharing could well become the same thing as driving five miles over the speed limit—it’s against the law, but who cares?  But I take encouragement from the fact that copyright owners are starting to stand up for themselves.” 

To watch the video of the complete lecture, click here.
To watch the audience Q&A period, click here.

The Manges Lecture is an annual offering of Columbia Law School’s Kernochan Center for Law, Media and the Arts.  The Horace S. Manges Lecture & Conference Fund was established by the law firm of Weil, Gotshal & Manges in 1986 in memory of its partner, Horace S. Manges ’19. Manges was counsel to leading writers and publishers and to the American Book Publishers Council (now the Association of American Publishers). A founder, officer and trustee of the Copyright Society of the U.S.A., he played an active role in the development of copyright legislation. Last year’s Manges lecturer was James G. Neal, Vice President for Information Services and University Librarian Columbia University.