Law Commons^™

Will Professor Nimmer's Change Of Heart On File Sharing Matter?, Rick Sanders

Vanderbilt Journal of Entertainment & Technology Law

In a significant reversal, the leading copyright treatise, Nimmer on Copyright, has changed its position on the controversial subject of whether merely making a copyrighted work available for distribution violates the distribution right--an issue most significant in the context of peer-to-peer file sharing. Nimmer on Copyright had previously concluded that the distribution right did not extend so far. It now embraces whole-heartedly the "making available" theory of copyright infringement. Courts and practitioners should not follow suit. First, the treatise relies heavily on legislative materials that predate the actual passage of the current Copyright Act. Second, it argues that the current …