Monday, September 20, 2010

New paper examines distribution and 'making available'

Professor Peter Menell of Berkeley Law has published a new paper examining copyright's right of distribution, and the related debate about whether it encompasses a "making available" right. The debate is important in litigation against peer-to-peer users and facilitators; a conclusion that "making available" is not a violation of the distribution right torpedoed the verdict in the first Jammie Thomas-Rasset trial. Prof. Menell definitively concludes that the evidence, including the legislative history of the 1976 Copyright Act, "shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to 'publish' and 'vend' within the right to distribute, and rejects the position that Congress required proof of 'actual distribution' to prove violation of the distribution right."

Here's the entire abstract:

In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age

Peter S. Menell
University of California, Berkeley - School of Law


September 19, 2010


Abstract:
Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.” Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages.

Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

5 comments:

  1. Mr. Sheffner,

    In your commentary you state ". . . and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right".

    I ask you how can someone be in violation of a law with no proof? Maybe I'm taking this out of context, but how do you come to that conclusion? As I understand it, if you accuse someone (either civil or criminal) you had better have proof of their actions.

    -Me

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  2. Me's post presumes some baseless accusation when in fact evidence of making available is no different from that of actual distribution.

    If you see a guy on the sidewalk offering a table full of infringing DVDs, guess what? That's evidence of making available.

    Similarly, if you get online, load up your torrent client, and ping somebody's IP and find a huge compilation of Big Bang Theory television episodes that you can download, guess what? That's evidence of making available.

    It's not that difficult.

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  3. @Me:

    No one is saying that someone can be "in violation of a law with no proof." The issue is what sort of evidence is necessary to prove a violation of the distribution right. I suggest you read the article to understand the argument why "making available" constitutes "distribution."

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  4. i think that the by reframing the question, the answer becomes apparent. does the distribution right refer to the result of distribution, or the act of distribution? if it refers to the act of distribution, making copyrighted works available for electronic distribution on a p2p network would infringe on the distribution right. additionally, the distribution may never be consummated (leaving no proof of 'actual distribution'). personally, i can't imagine anyone (seriously) arguing that only the result of distribution would violate the distribution right.

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  5. @Anonymous: arguing that "only the result of distribution violates the distribution right" is an alternative statement of the old chestnut "you can't steal non-physical goods".

    ReplyDelete

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