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Definitions Edit

Audio Home Recording Act of 1992 Edit

In Section 1001 of the U.S. Copyright Law, distribute is defined as "to sell, lease, or assign a product to consumers in the United States, or to sell, lease, or assign a product in the United States for ultimate transfer to consumers in the United States.”[1]

Semiconductor Chip Protection Act Edit

In Section 901 of the U.S. copyright law, to distribute "means to sell, or to lease, bail, or otherwise transfer, or to offer to sell, lease, bail, or otherwise transfer."[2]

U.S. copyright law Edit

Section 106(3) of the 1976 Copyright Act grants copyright owners the exclusive right to distribute copies or phonorecords of a copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. To infringe this right, one must actually disseminate either copies or phonorecords.[3]

Overview (Copyright) Edit

In the traditional sense, to infringe this right, a work must "first [be] fixed in tangible 'copies' or 'phonorecords' and those copies or phonorecords [must then be] distributed to the public."[4] However, in cases involving Internet "distribution" the process is reversed, "[a] work is first transmitted to the public in the form of intangible digital information, and it is then fixed . . . on the receiving end."[5]

The distribution right is implicated by a wide variety of conduct, including the sale of books at a bookstore, used CDs at a garage sale, and pirated DVDs at a flea market; the lending of books by a library; and transferring pirated software to users from "warez" websites on the Internet. Distribution is not limited to sales, but also includes other transfers of ownership such as gifts or barter.[6]

The right to distribute legitimate copies of works is substantially circumscribed by the first sale doctrine. This means that the copyright owner generally has only the right to authorize or prohibit the initial distribution of a particular lawful copy of a copyrighted work. It is important to understand, however, that the distribution of an unlawfully made (i.e., infringing) copy will subject any distributor to liability for infringement.[7]

In Playboy Enterprises Inc. v. Frena,[8] the court decision has construed the unauthorized downloading of digitized photographic images (whose reproduction was unauthorized) by BBS subscribers as "implicating" the distribution right. The court’s discussion reflects the reach of the distribution right with respect to infringing copies:

Public distribution of a copyrighted work is a right reserved to the copyright owner, and usurpation of that right constitutes infringement . . . . [Playboy Enterprise's] right under 17 U.S.C. §106 to distribute copies to the public has been implicated by Defendant Frena [the BBS operator]. Section 106(3) grants the copyright owner "the exclusive right to sell, give away, rent or lend any material embodiment of his work." There is no dispute that Defendant Frena supplied a product containing unauthorized copies of a copyrighted work. It does not matter that Defendant Frena claims it did not make the copies itself.[9]

The court may not have focused on the reproduction right, apparently because of its uncertainty whether the operator of the bulletin board system could itself be held to have reproduced a work that was (a) uploaded by one subscriber[10] and (b) downloaded by another.

Whether the litigants in Frena put the issue properly in dispute or not, the right to distribute copies of a work has traditionally covered the right to convey a possessory interest in a tangible copy of the work. Indeed, the first sale doctrine implements the common law's abhorrence of restraints on alienation of property by providing that the distribution right does not generally prevent owners of lawfully made copies from alienating them in a manner of their own choosing.[11] It is clear that a Frena subscriber, at the end of a transaction, possessed a copy of a Playboy photograph, but it is perhaps less clear whether Frena "distributed" that photograph and whether Frena or the subscriber "reproduced" it (and, if the latter, whether current law clearly would have made Frena contributorily liable for the unauthorized reproduction).

In a similar case, Sega Enterprises Ltd. v. MAPHIA,[12] a court, on a motion for a preliminary injunction, made findings of fact regarding (a) the use of a bulletin board system to "make and distribute" copies of copyrighted videogames, (b) the "unauthorized copying and distribution" of the games on the bulletin board, and (c) the profits made by the defendant from the "distribution" of the games on the bulletin board. The court's conclusions of law held that the reproduction right was infringed but apparently did not reach a like conclusion with respect to the distribution right.

The distribution right is limited by the "first sale doctrine," which allows the owner of a particular copy of a copyrighted work to sell, give or lend that copy to someone else.

To the public Edit

Although often referred to merely as "distribution," the right protected by §106 is the right to distribute copies or phonorecords of the work "to the public."[13] Giving a single copy of a work to a family member or close friend may not qualify as a "distribution" for copyright purposes, although courts have found under some circumstances that even the giving of a single copy to one person may constitute "distribution to the public."[14]

The Copyright Act does not expressly define "distribution" or "public," except through definitions of other closely-related terms. The term "publication" is defined in Section 101, and is often used interchangeably with distribution, and courts have noted that the two terms are "for all practical purposes synonymous."[15] Section 101 also defines the term "publicly," with respect to performances and display of works, as referring to "place[s] open to the public or any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." "Distribution" is not limited to sales, but also includes other transfer of ownership such as gifts or barter.[16]

Making available Edit

It is unclear whether a person who merely makes copyrighted material available to others has infringed the distribution right without any evidence of an actual transfer of infringing works. Several civil cases addressing online infringement state, or at least suggest, that the distribution right is infringed at the point when the defendant makes a file publicly available.[17]

A case frequently cited for the proposition that "making available" violates the distribution right is Hotaling v. Church of Jesus Christ of Latter-Day Saints.[18] At issue in Hotaling was whether a church library open to the public had distributed the plaintiff's work by having it in its collection and listing it in its card catalog, even though no evidence indicated that the work had actually been borrowed or viewed by library patrons. The defendant argued that holding the work in its collection constituted a mere offer to distribute, at most, not an actual distribution. The court sided with the plaintiffs:

When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work. Were this not to be considered distribution within the meaning of §106(3), a copyright holder would be prejudiced by a library that does not keep records of public use, and the library would unjustly profit by its own omission.[19]

At least one court considering Hotaling focused on the opinion's concern with potential prejudice from a library that kept no records, and suggested that the same logic might apply in online cases where no records are kept. In Arista Records, Inc. v. MP3Board, Inc.,[20] the court considered that "a copyright holder may not be required to prove particular instances of use by the public when the proof is impossible to produce because the infringer has not kept records of public use," but declined to find that an actual distribution had occurred based on the facts before it (in which investigators for the record industry had determined that hyperlinks on the defendant's website pointed to infringing audio files).[21]

Only one criminal decision has addressed this question, albeit in the context of deciding whether state court charges were preempted by federal copyright law: "Posting software on a bulletin board where others can access and download it is distribution . . . which is governed by the [federal] copyright laws."[22]

The Copyright Office states that U.S. copyright law includes a "making available" right that covers making files available on the Internet.[23] The Copyright Office characterizes this "making available right" as resulting from a combination of the distribution, reproduction, public display, and public performance rights.[24]

A number of federal courts have held that no distribution occurs unless and until an infringing copy is actually disseminated.[25] The leading copyright treatise also supports this view.[26]

To date, the only case to squarely address "making available" in the context of peer-to-peer networks and the new "making available" offense in 17 U.S.C. §506(a)(1)(C) is In re Napster, Inc. Copyright Litig. [27] In that opinion, the district court considered the plaintiffs' motion for summary judgment on their claims that Napster had directly infringed the plaintiffs' copyrights by creating and maintaining an indexing system that allowed users to upload and download infringing music files.[28] The key question was "whether the Copyright Act requires proof of the actual dissemination of a copy or phonorecord in order to establish the unlawful distribution of a copyrighted work in violation of 17 U.S.C. § 160(3)."[29] The court concluded that distribution did not include the mere offer to distribute a copyrighted work, given the plain meaning and legislative history of the terms "distribution" and "publication."[30] The court concluded that "to the extent Hotaling suggests that a mere offer to distribute a copyrighted work gives rise to liability under section 106(3), that view is contrary to the weight of [the] above-cited authorities."[31] Finally, the court rejected the argument that the "making available" language in the new offense at 17 U.S.C. §506(a)(1)(C), evinced Congress's intent that "making available" was a type of distribution, concluding that §506(a)(1)(C) made willful copyright infringement and "making available" two separate elements.[32]

Some of the civil cases in which proof of actual dissemination has not been required suggest an alternative rule — that where, due to the defendant's actions, no records exist of actual transfers, the court may infer or presume that actual dissemination took place.[33]

ReferencesEdit

  1. 17 U.S.C. §1001(6).
  2. 17 U.S.C. §901(a)(4).
  3. National Car Rental Sys., Inc. v. Computer Assocs. Int'l, 991 F.2d 426, 434 (8th Cir. 1993) (full-text); See also 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8.11[A](2006).
  4. Craig Joyce et al., Copyright Law 489 (7th ed. 2006).
  5. Id.; see also In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802 (N.D. Cal. 2005) (full-text) (holding that "merely listing a copyrighted musical composition or sound recording in an index of available files falls short of satisfying these ‘actual dissemination’ or ‘actual transfer’ standards"). See also A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (full-text); Playboy Enter., Inc. v. Russ Hardenburgh Inc., 982 F. Supp. 503, 513 (N.D. Ohio 1997) (full-text).
  6. Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 299 (3d Cir. 1991) (full-text) (citing H.R. Rep. No. 94-1476, reprinted in 1976 U.S.C.C.A.N. 5659, 5675-76 and 17 U.S.C. §106 (historical note)).
  7. Furthermore, with respect to international distribution, Section 602 of the Copyright Act makes unauthorized importations a violation of the distribution right.
  8. 839 F. Supp. 1552 (M.D. Fla. 1993) (full-text).
  9. Id. at 1556.
  10. Whether such reproduction was legally performed by the subscriber, the BBS operator, or both is not clear.
  11. Owners of copyrights in computer programs and sound recordings have the right to control post-first-sale rentals of copies of their works; owners of copyrights in other works do not. See 17 U.S.C. §109. This inconsistency may be important in the Internet context, particularly with respect to multimedia works that are neither expressly nor self-evidently in any particular category of copyrighted work (and whose treatment under various exemptions and special provisions may thus be unclear).
  12. 857 F. Supp. 679 (N.D. Cal. 1994) (full-text).
  13. 17 U.S.C. §106(3) (emphasis added).
  14. Ford Motor Co., 930 F.2d at 299-300.
  15. Ford Motor Co., 930 F.2d at 299; see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 552 (1985) (full-text); 2 Melville Nimmer & David Nimmer, Nimmer on Copyright §8.11[A], at 8-148 to 8-149.
  16. Ford Motor Co., 930 F.2d at 299 (citing H.R. Rep. 94-1476, 94th Cong., 2d Sess. 62, reprinted in 1976 U.S.Code Cong. & Admin. News 5659, 5675-76).
  17. See A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001) (full-text) (noting that "Napster users who upload file names to the search index for others to copy violate plaintiffs' distribution rights. Napster users who download files containing copyrighted music violate plaintiffs' reproduction rights."); Playboy Enters. v. Chuckleberry Publ'g, Inc., 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996) (full-text) (uploading content on the Internet and inviting users to download it violates exclusive publication right); Playboy Enters. v. Russ Hardenburgh, Inc., 982 F. Supp. 503, 513 (N.D. Ohio 1997) (full-text) ("Defendants disseminated unlawful copies of PEI photographs to the public by adopting a policy in which RNE employees moved those copies to the generally available files instead of discarding them."); Getaped.Com, Inc. v. Cangemi, 188 F.Supp.2d 398, 402 (S.D.N.Y. 2002) (full-text) (holding that material on website was published when it was placed on website and available for viewing or downloading).
  18. 118 F.3d 199, 203 (4th Cir. 1997) (full-text).
  19. Id. at 203.
  20. 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (citing Hotaling, 118 F.3d at 204).
  21. Id.
  22. State v. Perry, 697 N.E.2d 624, 628 (Ohio 1998) (full-text).
  23. See U.S. Copyright Office, DMCA Section 104 Report, at 93-95 (August 2001).
  24. Id. at 94.
  25. See Obolensky v. G.P. Putnam's Sons, 628 F.Supp. 1552, 1555 (S.D.N.Y.) (full-text) (directing verdict for defendants after jury trial because the right to distribute is not violated "where the defendant offers to sell copyrighted materials but does not consummate a sale" or "where there is copying, but no sale of the material copied"), aff'd, 795 F.2d 1005 (2d Cir. 1986); accord Paramount Pictures Corp. v. Labus, No. 89-C-797-C, 1990 WL 120642, at *4 (W.D. Wis. Mar. 23, 1990), aff'd, 334 F.3d 643 (7th Cir. 2003) (full-text) (not discussing point); National Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 430 (8th Cir. 1993) (full-text) (holding that distribution requires the transfer of an actual copy, as §106(3) grants the copyright owner the "exclusive right publicly to sell, give away, rent or lend any material embodiment of his work") (quoting 2 Melville Nimmer & David Nimmer, Nimmer on Copyright § 8.11[A], at 8-123; cf. In re Aimster Copyright Litig., 252 F.Supp.2d 634, 643 (N.D. Ill. 2002) (full-text) (noting, without analysis, that a peer-to-peer user "with copyrighted music files on his hard drive available for download can [once another user searches for and locates a file on the first user's computer] thereafter become an unauthorized distributor of that copyrighted music as soon as another Aimster user initiates a transfer of that file.").
  26. See 2 Melville Nimmer & David Nimmer, Nimmer on Copyright §8.11[A] at 8-149 ("Infringement of [the right to distribute] requires an actual dissemination of either copies or phonorecords.").
  27. 377 F.Supp.2d 796 (N.D. Cal. 2005) (full-text).
  28. Id. at 802.
  29. Id.
  30. See id. at 803-04.
  31. Id. at 803 (citations omitted).
  32. Napster, 377 F.Supp.2d at 805.
  33. See Hotaling, 118 F.3d 199; Arista Records, 2002 WL 1997918.

See also Edit

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