What's "distribution"?
Under the Copyright Act, copyright owners have the exclusive right to ”distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” 17 USC Sec. 106(3). This exclusive “distribution right” has traditionally been interpreted to cover the right to convey a possessory interest in a tangible copy of the work — to hand someone a copy of your work.
The first sale doctrine in sec. 109 provides an important limitation on this very physical distribution right — once you've handed out a copy of your work to someone else, your distribution control over that copy is exhausted. As the legislative history of Sec. 103 said, “The copyright owner's rights under section 106(3) [the distribution right] cease with respect to a particular copy or phonorecord once he has parted with ownership of it.” So 106(3) is clearly all about affirmative, intentional distribution of “copies” and “phonorecords” in which works are embodied.
S. 167, the Family Entertainment Copyright Act, passed the Senate in February and the House last week. Among other things, it amends the criminal provisions of the Copyright Act, stating:
Any person who willfully infringes a copyright shall be punished as provided under section 2319 of Title 18, if the infringement was committed … by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
Notice how “distribution” is being defined as “making available on a computer network accessible to members of the public.” As Fred von Lohmann recently noticed, that's a big change from the traditional exclusive ”distribution right” set forth in 17 USC 106(3), which involves handing an existing copy to someone else. (Indeed, it's hard to see how this new, broad understanding of the “distribution right” — “making available” — could possibly be limited by the first sale doctrine.)
The report language for S. 167 says that
Section 103 creates a criminal penalty for the willful distribution of works being prepared for commercial distribution. The Committee has been made aware of numerous examples of efforts to camcord new movies during their opening days of release followed immediately by either mass duplication and distribution of DVD copies or Internet distribution of the same movie. Although the harm to the distribution of physical or Internet copies of works when legal copies are available has long been established, the Committee notes the larger harm caused by those who distribute copies of works even before they are legally available to the consumer…. Section 103 will ensure that there is a specific penalty for such illegal pre-release activity.
Notice that the word “distribution” is used over and over again. The report creates the impression that it is well-accepted that “distribution” (and, thus, the exclusive distribution right that goes by the same name) includes “making available on a computer network.”
Now, it is true that distribution of a copy or phonorecord can happen electronically. 17 USC 506(a)(2) says this already. But that's not the same thing as “making available” on a computer network.
It seems our Congressional representatives may have agreed without a great deal of discussion to language (”making available”) that will be cited in support of an expanded exclusive “distribution right” — infringement of which is criminal. Because “transmission” of an electronic copy is already covered by the distribution right, this may not be a big deal — it's a small step from “transmission” to “uploading.” And there's an argument that uploading is a material contribution to unlawful reproductions of electronic works by others (another infringing activity).
But this expanded distribution right does give another lever to content owners in negotiations with ISPs. If an ISP is able to see that some of its subscribers are operating servers or “making available” electronic material to others on a largescale basis, then it may be deemed to know that uploading is happening and (presumptively) infringement of this newly expanded exclusive “distribution” right is occuring. Content owners can put pressure on the ISP to (1)enforce terms of service that require subscriber compliance with applicable law; (2) require personal information of the subscriber to be made quickly available; and (3) kick off subscribers who are engaging in this activity. Most troubling of all, ISPs who see uploading by subscribers may be deemed to be contributory or vicarious infringers themselves.
The content industry would like to put ISPs in this uncomfortable position, and the language of S. 167 will be helpful. It's not clear what can be done about this — except to continually remind ourselves that the distribution right in 106(3) has not been expressly amended. Loose language about distribution in section 506 of Title 17 (the section amended by the Family Entertainment Copyright Act) doesn't change what section 106 of that same title means.
End of the week
There's a new (or, perhaps, revived?) journal at Harvard called Unbound. It calls itself a journal of the legal left. I've read several of the articles in the initial issue, and it seems to be searching for new ideas and critical theories. And there are some reflections by law students about what it's like to be changed by law school.
University of Washington professor David Levy has been working on “Information, Silence, and Sanctuary.” He's worried about the future of contemplative scholarship in the digital age.
Participatory Culture will release in June an open source Bittorrent-based player for internet TV that will allow users to subscribe to channels, will allow organizations to provide new sources of channels to their fans with no bandwidth costs, and will generally make large media organizations' plans for IPTV difficult.
So — more information, more law journals, and more sanctuaries. A good week.