Why Do We Even Have 'Distribution' As A Right Protected By Copyright?
from the no-copy-is-made... dept
Under US copyright law, there is a series of “rights” granted to the copyright holder, described in Section 106. The key ones are reproduction, preparation of derivative works, distribution and public performance. These rights tend to be taken for granted as being a part of copyright law… but the more you think about it, the “distribution” right seems… weird. Why is it there and does it really belong? Sherwin Siy questions why it even exists as a response to the Kirtsaeng case about someone reselling (in the US) books he bought (legally) abroad. As Siy notes, the problems and questions around the first sale right really come up because of the whole “distribution” aspect of copyright law. Get rid of that and you don’t have a problem:
If someone rents a DVD from Netflix, he isn’t its owner—merely its possessor, or renter, or lessee. If he distributes the DVD to someone, for instance, giving it to his daughter, he would not only be stealing the copy from Netflix, but also, apparently, infringing the movie studio’s copyrights. More strangely, the daughter, even if she was ignorant of the DVD’s provenance, would herself be infringing copyright if she were to give the hot DVD to a friend. The tainted disk would afflict each of its subsequent owners, making them copyright infringers when they pass it on, even if they were uninvolved in the original sin of the theft from Netflix.
The fact that you can create such a legally poisoned copy is one of the larger flaws in the implementation of first sale
Basically, the real infringement is in the making of the copy, not in distributing the copy. The whole problem is solved if you get rid of the “distribution” right. That doesn’t mean you get free copies, because the reproduction right is still an issue. If you make an infringing copy, that’s still infringement. But with the “distribution” right, we’re talking about cases where no copies are made, and that seems like an odd use of “copyright.” Siy even points out that you could build certain cases back into the law by merely noting that distribution of an infringing copy is itself infringement. But, right now the law allows for the control of distribution, with a few exceptions. And that’s backwards.
While he doesn’t get into it, this would actually help fix some other problems with copyright law. There is an ongoing debate, for example, over whether or not “making available” a work is, by itself, “distribution” and thus illegal. One camp argues that since no copies are made, there is no “distribution.” The other argues that merely making a work available is the equivalent of putting it on a store shelf and thus is “distribution.” But if we got rid of the distribution right for copyright, you’d solve that debate, and make it clear that there’s only infringement when a copy is made.
There’s an even bigger problem with the distribution right under copyright law, which copyright lawyer Andrew Bridges has brought up numerous times, but which most copyright lawyers like to ignore. Technically, the distribution right under copyright law does not apply to digital files. Yes, the courts tend to ignore this all the time, so you could argue that they’ve decided that it doesn’t matter. But the exact wording of the distribution right under Section 106 is:
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;
The important bit here is “copies or phonorecords.” From there, let’s jump over to the definitions part of copyright law, found in Section 101, where it defines “copies” as:
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
Note, quite clearly (and twice), that the Copyright Act says that copies only refers to material objects. A digital file is not a material object. How about “phonorecords”?
“Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.
Yeah. Back again with the “material objects.” The distribution right — which is what many people are sued for online (uploading is seen as “distribution”) — only is supposed to apply to the distribution of “material objects” according to the very definitions found in copyright law. This isn’t to say that file sharing is legal under copyright law: in many cases, it likely would violate the reproduction right. But the distribution right is problematic in all sorts of ways.
Perhaps it’s time to just get rid of it entirely?
Filed Under: copyright, distribution, first sale
Comments on “Why Do We Even Have 'Distribution' As A Right Protected By Copyright?”
Removing distribution rights would disrupt the existing window system for digital properties. There is a lot of evidence that the windowing system itself is responsible for a lot of global piracy, so eliminating distribution rights and the windowing would be a massive strike against global piracy.
There are a lot of regional distribution outlets that would be hammered by the change. In fact, they would probably be hit harder than the studios themselves. There would still be some need for regional distributors to handle things like selling physical copies and arranging for theater showings, but it would be a smaller market. The major studios might even benefit if they could suddenly directly market digital properties worldwide without the regional middlemen.
I lean the opposite direction
I think the distribution restriction makes more sense than the copy restriction. If I make a zillion copies of something I own and never distribute them, nobody is harmed and nobody’s rights are infringed in any meaningful way.
But it’s a bit of a moot point. The problems with copyright law are unrelated to whether the law restricts copying or distribution. They are related to the law being overly broad in terms of allowing third parties to arbitrarily infringe on other people’s rights and in terms of the duration of copyright being untenably long.
Re: I lean the opposite direction
I’m inclined to agree with John. I think “reproduction” is really only there because at the time copyright was conceived, reproduction was a good indication of “intent to distribute”.
If you were to get rid of the distribution right, you’d still need numerous exceptions to the reproduction right for things like ephemeral copies, backups, format-shifting, time-shifting, etc, etc, which is a pretty good indication that the reproduction right is problematic.
Re: Re: I lean the opposite direction
Further to this I believe that the distribution right is only there to ease enforcement. Even in the old days you rarely caught anyone red-handed in the act of copying – you tended to catch people in the distribution process and putting distribution into the protected bracket made it easier to prosecute the people who you actually caught.
I actually don’t believe that those who framed the early copyright laws intended to restrict distribution of legally made copies.
In other words I don’t think they intended a monopoly on “distribution” only on “copying and distribution”.
Re: Re: Re: I lean the opposite direction
It’s the combination of distributing an unauthorized copy that seems intended to be covered, not either distributing an authorized copy or privately keeping an unauthorized copy.
If the law clearly was restricted to “distributing an unauthorized copy” (and public performance), that would eliminate most of the headaches around everything from first sale to private copying, format-shifting, backups, device jailbreaking, and so forth. (We’d also have to get rid of the DMCA’s anti-circumvention garbage.)
Re: Re: Re: I lean the opposite direction
Catching a person with a million copies of a copyrighted book without someone owning it is done through customs. If it is legalized in that part of the system I would argue that it would lead to a significantly easier global distribution of copyrighted works. Some are caught in selling the books, but to get to the godfather, you need to track the chain of supplies back to the original production facility. I would argue that it would be significantly harder to protect markets against counterfeit physical products if copying is made legal since the actual transaction of money from the smuggler and the godfather significantly harder to catch and proove, than the storage facility filled with iPrads. By having the physical borders in the world it becomes easier to use copying to catch perps. Btw. disallowing “distribution” in a broad sense without de minimus (TRIPS makes a de minimus definition) protection would make Christmas a slugfest of illegal activity. Distribution is of less importance. Heck, you could argue that the distributer can get banged for tax evasion or posession of illegal copies a lot easier than distribution!
On the internet copying and distributing is blurred to the point of making it hard to see the need for both. But when accepting the copyright on physical objects, it is so much better to get away with the distribution clause.
Re: Re: Re:2 I lean the opposite direction
I would argue that it would be significantly harder to protect markets against counterfeit physical products
I thought we were talking about copyrighted things like books and music. Those aren’t counterfeit; they’re the genuine article, just not authorized.
Re: Re: Re:3 I lean the opposite direction
If copying is legalized, counterfeit and nonlicensed would be exactly the same thing and exactly the same problem.
If distribution is legalized it wouldn’t change that much about the current situation for physical products (except removing the need for that de minimus clause to make it even close to reasonable). For digital products it would make things clearer legally.
I do not think there is any way to distribute digitally without copying in one shape or another. “making available” in PtoP might make it near impossible to sue people for letting others download materials illegally from them, which might make the case hard to defend politically.
Re: Re: Re:4 I lean the opposite direction
I don’t follow this. The reason for laws against counterfeiting are consumer protection (from fraud — being tricked into buying some cheap knockoff when they think they’re buying the real article). That is not the purpose of licensing.
They can’t logically be the same thing. The digital realm simply makes counterfeiting nonexistent, as it’s cheaper and easier to pirate.
Re: Re: Re:2 I lean the opposite direction
But for customs to catch such a stash, the person would have to be crossing a border with it or shipping it — in both cases, that would count as distribution. Or, at least, as transportation across a border — in which case, there’s a whole other set of laws that can be brought into play.
It’s still not the copying itself that’s the problem.
Ah Hah!
Now I understand the obsession with shiny plastic discs.
link typo
Mike: Just noticed in your line “Sherwin Siy questions why it even exists” the URL linked is the same address linked in reference to http://www.law.cornell.edu/uscode/text/17/106
Re: link typo
Oops. Fixed.
Fundamentals of Rational Copyright
Somewhat redundant to clarify related aspects. Don’t worry if you can’t grasp these all at once: I’ll be using magic to post it often.
) Creators inherently have SOLE RIGHT TO COPY their work.
) Creating is and has always been more difficult than copying.
) The special provisions in law for copyright stem from the above 2 facts. It’s specific setting out of “intellectual property” rights for creating works given the relative ease of copying.
) Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them. (For a limited time, but after in public domain, it’s still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.)
) Copyright law is indeed exactly to prevent copiers and the general public from copying works (during the limited time). The societal agreement is that only creators can attempt to gain from it during that (limited) period.
) There are NO rights whatsoever granted to or held by copiers. No one’s “right to copy” is at any time removed or diminished because it never exists prior to the creation of a work.
) Machines doing the labor of copying doesn’t confer any new right to do so.
) Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment.
) Even indirect income from in any way providing “for free” the protected work of others is clearly illegal, immoral, and unethical.
) Putting an entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit.
) Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators.
) Possession of authorized physical media is license to access the content any number of times (which can be one-at-a-time library use, yet not “public” display). In the absence of physical media, there’s no clear right to access content, only perhaps an authorized temporary permission. But at no time does possession of digital data confer a right to reproduce it outside of the terms and conditions as for physical media, no matter how easy it is to do so.
) Emphasizing an aspect of the just above point: digital data is even less “owned” by the purchaser than with physical media, not more.
) When independently rendered, fashion “ideas”, “art” in general, “look and feel”, jokes, bits of wit, and musical “riffs” are not copyright-able because not significant effort. Don’t throw those in to confuse the topic. (Specific clarification for music: you may play “stolen” riffs to parody or add spice, but not use actual “sampled” audio as basis for your main theme.)
) Many persist in using the canard of “copyright can’t guarantee income”. — Misleading. The older body of copyright (beginning in the US Constitution) was to guarantee creators a monopoly on the ATTEMPT at income from a given work for a limited time period. No one else has the right to even MAKE such attempt.
) Nothing above is invalidated or weakened by results being imperfect, nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means.
Re: Fundamentals of Rational Copyright
He holds these truths to be self evident, that creators are endowed by themselves with certain inalienable rights….
Re: Re: Fundamentals of Rational Copyright
Apparently so truthful and inconvenient that you freetards had to censor him.
You prove our position every single day here.
Thanks.
Re: Re: Re: Fundamentals of Rational Copyright
You prove our position every single day here.
Great, then go away and leave us to it. Your work here is done.
Re: Re: Re: Fundamentals of Rational Copyright
Apparently so truthful and inconvenient that you freetards had to censor him.
If you pay attention, you’ll notice that it’s only his posts with ad homs and insults that get “censored”. Admittedly that is almost (but not quite) all of them. When it’s just plain vanilla crazy, they’re usually left alone.
Re: Fundamentals of Rational Copyright
I’m not clear what your point is. Once again, I get the impression you’re arguing with someone who doesn’t exist.
Most of the things you feel the need to enumerate are understood by just about everybody.
However, there are a few important mistakes in that list:
This is not true as a blanket statement. There are many exceptions to this “sole right to copy” business.
No, it does not, and if it did then it would make impossible many types of legitimate businesses.
No, it is not. It implies such a license, but the license is independent of physical media.
This is nonsensical. The content is “owned” to exactly the same degree regardless of what kind of media it exists in (and it always exists in a medium of some sort.)
Not sure what you’re saying here. Are you saying that copyright is in some way dependent on the amount of effort put into creating the work? If so, this is patently incorrect.
I don’t think you understand why people make this point.
Then, at long last, you agree with us! Welcome aboard, blue!
Re: Re: Fundamentals of Rational Copyright
If so, this is patently incorrect.
I see what you did there.
Re: Re: Re: Fundamentals of Rational Copyright
I’m glad someone noticed. 🙂
Re: Fundamentals of Rational Copyright
Ok… um… wow… that’s a lot of words… pretty solid post though. I’m just a little confused… nowhere in your post does it include any discussion of the validity of distribution rights that the article was actually about. Excellent summary of the basic understandings of copyright though…
Re: Fundamentals of Rational Copyright
If this “sole right to copy” is inherent, why should it then be revoked after a certain duration of time? Why should it not be perpetual? And — assuming that this right exists for some period of time yet it is not perpetual — what then is the “inherent” duration of time that it should persist?
Re: Fundamentals of Rational Copyright
Copyright as being pushed by you is anything but rational.
If someone rents a DVD from Netflix, he isn’t its owner?merely its possessor, or renter, or lessee. If he distributes the DVD to someone, for instance, giving it to his daughter, he would not only be stealing the copy from Netflix, but also, apparently, infringing the movie studio’s copyrights.
The copyright holder’s distribution right has already been exhausted by the first sale doctrine, so Netflix and its users are free to distribute the DVD as they wish.
There’s an even bigger problem with the distribution right under copyright law, which copyright lawyer Andrew Bridges has brought up numerous times, but which most copyright lawyers like to ignore. Technically, the distribution right under copyright law does not apply to digital files.
That argument is foreclosed by the Supreme Court’s opinion in New York Times v. Tasini, 533 U.S. 483 (2001).
Perhaps it’s time to just get rid of it entirely?
Or perhaps you should spend 15 minutes researching the origin and purpose of the distribution right.
Re: Re:
That argument is foreclosed by the Supreme Court’s opinion in New York Times v. Tasini, 533 U.S. 483 (2001).
Well aware of the Tasini case, and its implications, though I don’t see where it specifically addressed the question of the restriction in the law of the distribution right to “material objects.” Perhaps I missed it? Mostly the court just lumps together “reproduction and distribution” and never seems to address that particular question.
Or perhaps you should spend 15 minutes researching the origin and purpose of the distribution right.
I see. Can’t win an argument so you pretend you know what I do and don’t know. It’s fun to watch you flail around.
Re: Re: Re:
Well aware of the Tasini case, and its implications, though I don’t see where it specifically addressed the question of the restriction in the law of the distribution right to “material objects.” Perhaps I missed it? Mostly the court just lumps together “reproduction and distribution” and never seems to address that particular question.
Your piratical allies at the EFF have tried that argument before and failed. See, e.g., http://scholar.google.com/scholar_case?q=542+F.Supp.2d+153&hl=en&as_sdt=2,19&case=11339207100949783661&scilh=0
You should read the parts I cut out to get the full analysis. There are other courts who have said as much, including courts that explicitly say the argument is closed by Tasini.
I see. Can’t win an argument so you pretend you know what I do and don’t know. It’s fun to watch you flail around.
Funny how you ignore my point about first sale making the Netflix DVD example a nonstarter. Regardless, my point is that if you’re going to write a whole article about getting rid of the distribution right, then perhaps you should first understand why it exists.
I’ll give an example: I create a thousand pirated copies of “Harry Potter” and give them to you to sell. You sell them on the street corner. I’ve violated the reproduction right, you’re violated the distribution right. Without the distribution right, your corner sales wouldn’t be infringing since you had no part in the reproduction.
Re: Re: Re: Re:
I’ll give you a better example: I create a million pirated digital copies of “Harry Potter” and give them away. Oh Internet, how you’ve won again.
Re: Re: Re: Re:
I’ll give an example: I create a thousand pirated copies of “Harry Potter” and give them to you to sell. You sell them on the street corner. I’ve violated the reproduction right, you’re violated the distribution right. Without the distribution right, your corner sales wouldn’t be infringing since you had no part in the reproduction.
Right. I don’t see how that’s a bad thing. Go after the actual copier. The sales shouldn’t be infringing.
Re: Re: Re:2 Re:
LOL! You claim you’re enjoying watching me “flail around,” but you ignored my comment about first sale and the Netflix DVD, and now you’re ignoring my cite to a court that rejects the silly argument that digital copies aren’t covered by the distribution right. It’s hilarious that you claim to be amused by my flailing around, yet you can’t even address my points.
Right. I don’t see how that’s a bad thing. Go after the actual copier. The sales shouldn’t be infringing.
Really? You don’t see how someone distributing infringing copies is a problem? I know you LOVE piracy, but give me a break. The problem is significantly more acute on the internet. If I make available a file in a peer-to-peer share folder, I haven’t made any copies but I am distributing them to the public. In your crazy world, only the downloaders on the peer-to-peer network would have liability. Why not put liability on the party that makes the file available to be downloaded in the first place?
Re: Re: Re:3 Re:
The argument I think Mike is making is that when he ‘makes it available’ no infringement occurs until the download occurs. Having it in a ‘peer-to-peer share folder’ (what, are you still using Kazaa?) does not mean its being downloaded. I can have a legitimate fair use claim to placing it on that network initially (esp. if I’m using a torrent or file locker which are the current p2p Demons). And some can have a legitimate fair use claim to download it. But CEA’s don’t want to determine if any specific instance is fair use. (and according to them, can’t) So instead they argue that the uploader by making it available are, by definition, attempting to distribute in an infringing manner.
I know too many Luddites and techno-phages to think that everyone can format-shift or create archival copies without assistance. Fair-Use exists.
Additionally, the final argument is that the “party making availible” and the “Party downloading” both, separately, make the CEA whole in these cases. In a normal theft, a judgement for ‘Damages’ would be levied against the perpetrators as a whole. If 2 people stole 5 CDs from me (Retail value $20), I would probably get my property back, and possibly a portion of the fine. In the case I can’t get my property back, Id get the $100 plus that fine.
But in the 5 CD (retail value $20 each) digital download Copyright ‘theft’ case, The downloader is paying a $20,000 DMCA fine, and the person making it availible is facing $20,000 in back licencing fees. The liability is put on both of them individually, not as a unit. Legal realities mean that liability flips between the downloader or the downloadee depending on which the CEA wants to sue, and under which right they think they have the better argument for.
Re: Re: Re:4 Re:
The argument I think Mike is making is that when he ‘makes it available’ no infringement occurs until the download occurs. Having it in a ‘peer-to-peer share folder’ (what, are you still using Kazaa?) does not mean its being downloaded.
I get that (I’m on a different computer now, so my avatar has changed). I’m not referring to the issue of whether merely making available is infringement if no one downloads the files. Let’s say that I make available a copyrighted work in a share folder, and the 1,000 people download it from me. Under Mike’s view, where there’s no distribution right, I haven’t done anything wrong since I didn’t violate the reproduction right. Now, I’m sure Mike would like nothing more than for there to be no liability in that situation, but the law doesn’t work that way.
I can have a legitimate fair use claim to placing it on that network initially (esp. if I’m using a torrent or file locker which are the current p2p Demons). And some can have a legitimate fair use claim to download it.
If I make “Harry Potter” available for others to download, how is that possibly fair use on my part or the part of the downloaders?
But in the 5 CD (retail value $20 each) digital download Copyright ‘theft’ case, The downloader is paying a $20,000 DMCA fine, and the person making it availible is facing $20,000 in back licencing fees. The liability is put on both of them individually, not as a unit. Legal realities mean that liability flips between the downloader or the downloadee depending on which the CEA wants to sue, and under which right they think they have the better argument for.
The uploader violates the distribution right and the downloader violates the reproduction right. I would argue that even though there are two separate infringements, the uploader and the downloader are jointly and severally liable for each separate infringement. I don’t know if any court has ever held as much, but it’s something I’ve been curious about. A lot of this stuff is far from settled.
Re: Re: Re:5 Re:
…I haven’t done anything wrong since I didn’t violate the reproduction right
Other then if your act was willful, you are party to the reproduction violations. No reproduction would occur but for my providing the data to copy from. No need involve a seperate, distinct distribution right, for reasons I will list below.
If I make “Harry Potter” available for others to download, how is that possibly fair use on my part or the part of the downloader
Well, that depends on a few things. “Making available” being a very broad statement for example. But lets assume what you mean is that I posted it and gave links to downloaders. How can I claim fair use?
First off, lets assume that Archival and Format Shifting fair use exceptions that apply to the copyright act are granted for the DMCA, so as to focus on the reproduction and distribution rights and not muck the discussion up with DRM-violations. So now I have spent the time and work to create legal, format-shifted copies of the first movie/book. (lets use the movie for my example). The encoding is well received by people in my local community for looking good on a 4″ screen while not taking up to much space. I tell people what codecs and settings to use, but they aren’t technically literate enough to succeed at the process. Knowing they own the movie in question, I give them a direct file link to my Cloud media file locker I use to store these legal copies. My downloaders, owning legal copies also, have fair use claim to that file. I realize my example is simplistic, but it expresses a fair use claim involving harry potter (Which is honestly a bad example for this). This situation would be considered distribution, because reproduction and distribution legality is considered separately.
The uploader violates the distribution right and the downloader violates the reproduction right. I would argue that even though there are two separate infringements, the uploader and the downloader are jointly and severally liable for each separate infringement.
The distribution violation can’t happen without the reproduction violation. The reproduction violation can’t happen without the distribution. Its not 2 separate violations. Its one. The uploader needs to show the data is either non-infringing or what sort of fair use claim he could make. The downloader needs to show either he has been misidentified or he had fair use claim on the data.
In your original example the same argument prevails. The guy distributing your 5000 copies likely has good reason to believe the below-market-price books/DVDs are not lawfully obtained and should have done his due diligence before he became an accessory to your Reproduction-with-intent-to-distribute operation. Again, your 5000 copies harm no one until you distribute. It is only the combination of violating BOTH rights that a violation of either occurs.
Re: Re: Re:5 Re:
Let’s say that I make available a copyrighted work in a share folder, and the 1,000 people download it from me. Under Mike’s view, where there’s no distribution right, I haven’t done anything wrong since I didn’t violate the reproduction right.
If you want to get pedantic about it, you did violate the reproduction right when your computer retrieved the data and transmitted it on request. I did not violate the reproduction right when I simply received and stored the data that you reproduced for me.
Re: Re: Re:5 Re:
how is that possibly fair use
It isn’t, of course.
You have to realize something: Techdirt has become the Fox News of the pirate world. They make up crazy alternative realities and as long as some zealot here laps it up, all is good.
It’s incredibly satisfying to watch this site circle the drain in this type of flame out :).
Re: Re: Re:5 Re:
Actually the uploader violates the reproduction right.
How could the downloader violate it? He would need to have the original to make a copy, and if he has the original, he wouldn’t need the copy.
Technically, the uploader takes the ‘original’, and transmits a series of bytes across the network that constitute a ‘copy’. The downloader receives this copy. There is no way for downloaders to determine if the copy is infringing or not, thus the liability is on the uploader who first made the infringing copy.
To replace some words: Technically, the guy that purchased the CD makes a copy, then passes this copied CD to the receiver. There is no way for a receiver to objectively determine whether their received CD is infringing, thus the liability is on the person who first made the copy, even if the receiver then passes the CD on again. (For all he knows, it could be a legit copy.)
This is only true if you enforce Reproduction and not Distribution rights.
Re: Re: Re:6 Re:
Actually the uploader violates the reproduction right.
How could the downloader violate it? He would need to have the original to make a copy, and if he has the original, he wouldn’t need the copy.
I’m just repeating what the Ninth Circuit held in the Napster case:
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013-14 (9th Cir. 2001) (emphasis added).
The uploader doesn’t make the copy; the downloader does. The uploader still has his copy, and it’s the downloader who makes a second copy–thus the downloader who violates the reproduction right.
Re: Re: Re:7 Re:
The uploader doesn’t make the copy; the downloader does. The uploader still has his copy, and it’s the downloader who makes a second copy–thus the downloader who violates the reproduction right.
This is incorrect, and I just explained the technicalities of how it works. The downloader literally cannot reproduce the work, as they do not have the work. The downloader REQUESTS that the uploader makes a second copy, which the uploader does and then passes along. This is the technically accurate description of how peer to peer software works. What you are describing (and admittedly, what the court found) is creation of perfect data without an original. (The downloader does not have the original, and never possesses the original, and thus cannot make a copy of the original. He does end up having a copy of the original, but he did not create this copy.) Napster did work this way; Napster never stored the data of the files on their servers, they contained references to those uploaders who did have the data of the files.
Now, where they would get into trouble is the fact that a downloader could become an uploader as well, thus making a copy.
Honest question, is there a difference (legal or otherwise) between someone copying a CD, then handing the copy to someone else, and someone giving the CD to someone else, who then copies and hands back the original?
Re: Re: Re:8 Re:
Honest question, is there a difference (legal or otherwise) between someone copying a CD, then handing the copy to someone else, and someone giving the CD to someone else, who then copies and hands back the original?
Legally, in the first scenario the first person commits copyright infringement (but I think not the second), and in the second scenario the second person commits copyright infringement but definitely not the first.
Morally (and maybe legally, I don’t know), it depends whether the lender knew the recipient was going to make a copy (and if you think copying is immoral).
Practically it doesn’t matter.
Re: Re: Re:8 Re:
This is incorrect, and I just explained the technicalities of how it works. The downloader literally cannot reproduce the work, as they do not have the work. The downloader REQUESTS that the uploader makes a second copy, which the uploader does and then passes along. This is the technically accurate description of how peer to peer software works. What you are describing (and admittedly, what the court found) is creation of perfect data without an original. (The downloader does not have the original, and never possesses the original, and thus cannot make a copy of the original. He does end up having a copy of the original, but he did not create this copy.) Napster did work this way; Napster never stored the data of the files on their servers, they contained references to those uploaders who did have the data of the files.
The uploader distributes the ones and zeroes to the downloader who then fixes them in a material object. The downloader ends up with the copy. I hear what you’re saying about the uploader creating another copy to send, but that copy is merely transitory and not fixed, right? It’s the fixing that matters, and it’s the downloader who fixes the copy not the uploader. I think it takes two to tango, and both are liable for violation of the reproduction and distribution rights, but I don’t know of any court having said so.
Honest question, is there a difference (legal or otherwise) between someone copying a CD, then handing the copy to someone else, and someone giving the CD to someone else, who then copies and hands back the original?
Whoever actually makes the copy is the direct infringer and whoever induces or helps them is an indirect infringer. Both are jointly and severally liable for the infringement though, so it doesn’t really matter whose liability is direct and whose is indirect. Joint and several means they’re both on the hook, and if one can’t pay and the other can, then the one that can has to pay for both.
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I should be able to sell drugs to whoever I choose. You need to only prosecute those that buy them.
uh huh.
lol
Please continue with these posts, guys. They’re awesome.
Re: Re: Re:5 Re:
I should be able to sell drugs to whoever I choose. You need to only prosecute those that buy them.
Exactly. I love how Pirate Mike comes into the comments suggesting that someone who stands on a corner selling counterfeit DVDs or someone uploading thousands of copies of some pirated movie on a peer-to-peer network shouldn’t be liable for anything.
And he seriously wonders why everyone thinks he’s a pirate-apologist?
ROFLMAO!
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Far be it from me to get in the middle of your lover’s quarrel, but I don’t think your analogy makes sense.
How did you get: “If I make available a file in a peer-to-peer share folder, I haven’t made any copies but I am distributing them to the public. In your crazy world, only the downloaders on the peer-to-peer network would have liability.”
From: I don’t see how that’s a bad thing. Go after the actual copier. The sales shouldn’t be infringing.?
In my read of both assertions, Go after the actual copier. and Why not put liability on the party that makes the file available to be downloaded in the first place? are saying the exact same thing…
If you are the original uploader, you are by definition making the original copy that you are then distributing. The peer that receives the download is the same thing as the person that purchases the bootleg. He’s not the one to go after. I believe you and Mike are saying the same thing on this point.
Re: Re: Re:4 Re:
The problem is the initial action is flipped when we talk about digital files. The infringing copy is the one you download, after I distribute my legal copy (because just placing the file on the server in not infringement, it could have been intended for my personal use). But in the physical world the infringing copy is created and then its the illegal copy that is distributed.
From the legal stance, reproduction rights are not violated by the guy with the file being copies online. Its a ridiculous standpoint, but its the standpoint that exists. So when online they need to look at the ass backwards separation of reproduction and distribution rights
Re: Re: Re:3 Re:
you know, these discussions would be much more interesting w/o the personal attacks included (on both sides, btw). The AC started it, but responding almost always seems to make things worse.
I think the points raised are interesting enough w/o the attacks, and while neither of you may convince the other, w/o the attacks, perhaps you’d convince a lurker, or at least we’d be better informed.
Re: Re: Re:2 Re:
I don’t see how that’s a bad thing. Go after the actual copier. The sales shouldn’t be infringing.
lol
Where would Mike Masnick be without his willful blindness?
In a court of law, on the losing side. Every time.
Chasing a dream he’ll never see in a completely zealous manner. That’s Mike Masnick.
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Your piratical allies at the EFF
Just like to point out that you actually said this. If you think the EFF is “piratical,” you’re completely insane.
Re: Re: Re:2 Re:
I think that the EFF, like Techdirt, are clearly on the side of the pirates and not the rights-holders.
Re: Re: Re:3 Re:
Not being on the side of rights holders =/= being on the sides of pirates. In the case of the EFF it means being on the side of the public and civil liberties against the overreach of maximilist corporations and their step by step legislative efforts to chip away at our rights.
Re: Re: Re:3 Re:
You see anyone as either ally or enemy? Are you sure that you are ok?
Re: Re: Re:3 Re:
on the side of the pirates and not the rights-holders.
Well, there’s your problem.
The only people who are “on the side of the rights-holders” are the rights-holders themselves (and even rights-holders have conflicting views). Pretty much everyone else is against their “side.”
If that’s all it takes to be “piratical,” then the vast, vast majority of people on the planet are “piratical.” Including the people who have never pirated anything, don’t plan to do so, and don’t like that others are doing it.
I suspected that you hold a copyright-maximalist bias that is radical in the extreme. Thanks for confirming that suspicion. Your viewpoints represent copyright law exactly as much as the Westboro Baptist Church represents Christianity.
Re: Re: Re:4 Re:
Well, there’s your problem.
The only people who are “on the side of the rights-holders” are the rights-holders themselves (and even rights-holders have conflicting views). Pretty much everyone else is against their “side.”
If that’s all it takes to be “piratical,” then the vast, vast majority of people on the planet are “piratical.” Including the people who have never pirated anything, don’t plan to do so, and don’t like that others are doing it.
I suspected that you hold a copyright-maximalist bias that is radical in the extreme. Thanks for confirming that suspicion. Your viewpoints represent copyright law exactly as much as the Westboro Baptist Church represents Christianity.
LMAO! I call Mike a piratical because he’s a blatant pirate-apologist and a zealot to boot. That you can’t see it (or rather, admit it) is priceless.
Re: Re: Re:5 Re:
I call Mike a piratical
You weren’t talking about Mike. You were talking about the EFF, a 20-year-old nonprofit that is essentially the ACLU of the Internet.
That you think they’re “piratical” shows that you are a complete zealot.
Re: Re: Re:6 Re:
You weren’t talking about Mike. You were talking about the EFF, a 20-year-old nonprofit that is essentially the ACLU of the Internet.
That you think they’re “piratical” shows that you are a complete zealot.
I’ve read enough of their briefs in copyright cases to know whose side their on. And it ain’t the rights-holders.
Re: Re: Re:7 Re:
And we all know the rights-holders are always right; hence the name.
/s
Re: Re: Re:7 Re:
I’ve read enough of their briefs in copyright cases to know whose side their on. And it ain’t the rights-holders.
Which, if true, shows only than that rights-holders are not on the side of civil rights on the Internet. It certainly doesn’t show that the EFF is “piratical.”
Re: Re: Re:8 Re:
Which, if true, shows only than that rights-holders are not on the side of civil rights on the Internet. It certainly doesn’t show that the EFF is “piratical.”
LOL! So you thinks it’s the right-holders who don’t care about people’s rights on the internet? Pirates, by definition, don’t respect other people’s rights. Right-holders, in turn, enforce their rights–and the “break the internet” crowd, yourself most definitely included, try and turn it into the civil rights movement. Pirate-apologist logic at its best. If someone’s civil rights are being violated, they can seek protection in the courts. Tell me when you find a viable plaintiff.
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Oh, you’re just a troll.
Nevermind then.
Re: Re: Re:3 Re:
I think that the EFF, like Techdirt, are clearly on the side of the pirates and not the rights-holders.
Anyone that can read understands that at this point.
Re: Re: Re:
Well aware of the Tasini case, and its implications, though I don’t see where it specifically addressed the question of the restriction in the law of the distribution right to “material objects.” Perhaps I missed it? Mostly the court just lumps together “reproduction and distribution” and never seems to address that particular question.
I found the language in Tasini I was thinking of. The Supreme Court explicitly says that distributing electronic copies is distribution under 106(3):
New York Times Co., Inc. v. Tasini, 533 U.S. 483, 498 (2001) (emphasis added).
So the Court says that LexisNexis, by selling copies through its electronic database, was distributing copies under 106(3).
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And here’s another court citing Tasini and saying it was the Supreme Court’s holding that electronic distributions are distributions under 106(3):
Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 146-47 (S.D.N.Y. 2009) (emphasis added).
I can go on and on. It’s almost like I remembered what Tasini said (unlike you, who claimed to be “well aware” of it) and I’m not flailing around. Weird. It’s almost like I know what I’m talking about. Huh.
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Can the Supreme Court just decide that a law means something other than what it clearly says? I thought they were supposed to follow the laws and say that Congress needs to fix it if it needs fixing (absent Constitutional issues).
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Damn activist judges, legislating from the bench!
Re: Re: Re:2 Re:
Can the Supreme Court just decide that a law means something other than what it clearly says? I thought they were supposed to follow the laws and say that Congress needs to fix it if it needs fixing (absent Constitutional issues).
Good point, but “no” is the answer. Whatever a majority of the Supreme Court holds to be the meaning of a law is, ipso facto, the legal meaning of that law. But you’re right, if the law is unambiguous and only subject to one interpretation, then that is the meaning the Court must give it (assuming it’s constitutional). Nonetheless, I don’t think Mike’s textual argument is particularly persuasive. I think Mike incorrectly focuses on the meaning of “material objects” while failing to focus on the meaning of “distribute.”
Re: Re: Re:3 Re:
Thanks for the last couple of posts that were (for the most part) just a point w/ supporting facts, and a nice reasoned response to a question.
I could have done w/o your extra dig at Mike, but everything else was informative and interesting.
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The copyright holder’s distribution right has already been exhausted by the first sale doctrine, so Netflix and its users are free to distribute the DVD as they wish.
Only if the Production happened in the US. Its a well noted case in the SCOTUS debating if first sale is exhausted otherwise. Because of the way distribution rights are handled separately from reproduction rights, the reproduction can be legal, but the distribution illegal. Mike’s argument should be that we need to twin these rights. Because it is only with intent to distribute or intent to cause to be distributed that reproduction is infringing. By not treating them as separate rights, a lawfully reproduced copy is one that is lawfully distributed. Therefore the textbook you legally obtained in Mumbai is legal to sell in the US. No ‘Fair Use’ exception for your Toyota-brand car required (as suggested to the SCOTUS in the case I am referencing).
This also solves the ‘what constitutes the point of infringement on the internet’ debate that currently exists. Uploading the file is not the infringement, as valid fair use claims exist. The presence of a third party downloading the file is the point of infringement. Then you can defend against individual claims of infringement and either show fair use or face the piper for your pirating ways.
TL;DR, Merge the distribution and reproduction rights such that an infringing copy is always infringing no matter how much laundering you do, but a legal copy can not become infringing via violations of distribution windowing.
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Apparently, reading the further debate above, I read a different position into Mike’s mouth. I stand by my solution, believing it to solve the copyright laundering issue presented by the AC mike is arguing with above.
Digital isn't material?
A ‘digital’ file is nothing more than the physical characteristics of a particular storage medium read into a computer.
It’s like saying the ‘copy’ on silly putty isn’t a ‘material’ copy.
Digital obviously changes things in terms of the ability to copy infinitely, but there is a clear ‘physical’ representation of the digital file; without it it doesn’t exist.
Re: Digital isn't material?
Saying that digital files are physical is like saying that thoughts and memories are physical because they rely on the brain as a physical storage medium.
Re: Re: Digital isn't material?
Don’t encourage them.
Re: Re: Digital isn't material?
Actually not at all. Your thoughts and memories of a copyrighted work are unauthorized derivative works not exact copies!
Re: Digital isn't material?
Considering that many movies/audio are filmed/recorded with digital equipment, then technically, there is never going to be any physical representation of the digital file. It can remain as nothing more than a string of 1s and 0s stored on any number of types of storage media.
In a way, you are backwards, without the digital file, the physical object wouldn’t exist (DVD, CD, etc)
Now if the original was a physical film/tape, that is a physical object.
Re: Digital isn't material?
I think you need to go back and understand the difference, both legally and otherwise of tangible and intangible. Especially in reference to goods and/or services.
A ‘digital’ file is an intangible product and cannot be considered physically existing WITHOUT a physical container of some sort. Electricity, and even money can be in one aspect great analogies to this intangible system, especially the fungibility of them both.. Digital is very much like this especially in regards to the fungability of the data-bits UNTIL they are stored into a specific format onto a physical construct.
This is the conceptual problem that most people (and it seems you do too) with understanding the whole problematic nature of digital goods and therefore effects our legal understanding of them when trying to fit them into the physical construct that is the ‘real’ world instead of the virtual or even betwixt the too.
Re: Re: Digital isn't material?
I’m still not clear on why something being “digital” makes a difference. How is digital information inherently different (in the realms we’re discussing) than analog information?
Is the information on a CD different in some legal way from the information on a vinyl record or cassette tape (for example)?
Re: Re: Re: Digital isn't material?
I’m still not clear on why something being “digital” makes a difference.
“Digital” is often used to mean “non-physical”. It’s less accurate, but also less awkward. There’s no really good word that means “not physical”, that I know of anyway. Immaterial technically is accurate, but implies unimportance or irrelevance, which isn’t intended.
Not only does this paragraph not preclude “copies” from meaning digital files, it actually means that in the case of such files, the “copy” is extended to cover the hard drive on which the file is stored. Note the phrase “includes the material object…in which the work is first fixed”.
Copy a file without knowing what colour it is? Your entire hard drive is now contraband.
I’d make some statement about losing more respect for copyright, but there’s none left to lose.
Re: Re:
Unless they’re coded into the ROM, digital files are never “fixed.” A single file is actually be a copy of a copy of a copy that the computer has copied and deleted several times and is in different places at different times, whether its in the RAM or on the hard drive or over a network connection.
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I suppose you could read it that way, or you could fairly assume that they mean the portion of the hard drive on which it resides.
Just like if I carve a drawing into a tree, I don’t get rights to the whole tree, just the part with the drawing.
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How do you figure? You see the word “portion” in there somewhere that I didn’t spot? It doesn’t say anything about portions of material objects. Carving a drawing into a tree doesn’t change the rights of any portion of the tree. Just like stealing someone’s gold, melting it down and making a stupid sculpture out of it doesn’t give you any right to the gold.
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And the brains of any person who has heard or seen the work by your definition.
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Correct. The statute as written includes the brains of people who see, hear, or otherwise experience a copyrighted work, in particular because of the “otherwise communicated” catch-all in the description. Without that, it might reasonably be limited only to the brains of those with eidetic memories.
Why stop at distribution?
Why don’t we get rid of the derivative works clause while we’re at it?
Allow me to explain my position a bit:
I’ve heard people say ridiculous things like “if it’s based on someone else’s work, then there’s no originality”. This is a terrible argument that doesn’t hold up when you think about it: Anyone who has ever written fan fiction or created a remix knows what I’m talking about.
Again, the reproduction right covers most of what the copyright holders are worried about: in a nutshell, they’re worried about copycats who take others’ work verbatim and make money from it, without doing anything of their own. This is the image they’re trying to instill when they talk about “theft”, and to be honest the analogy actually kind of works there. But to lash out at all uses and cry “piracy” and “theft” every time a fan remixes your song is plain ridiculous. The copycat is unfairly exploiting the value of someone else’s work; this, I’m sure, everyone would agree is morally unacceptable. The fan remix, on the other hand, is a valid expression of creativity with value separate from and beyond that of the original work on which it is based, and thus should be allowed to exist. Current law, however, treats both of these cases the same: they’re both infringing, and the owner of the copyright gets to crush them if desired.
When you release a creation to the public, you are contributing to human culture, like it or not. Once something is out there, you cannot control what other people do with it. Culture is inherently cumulative. No idea is completely original; all creators take pieces from what’s around them. Hence my basic position: all culture is derivative, and therefore it is meaningless to outlaw derivative works.
You have two choices: persecute those who build on your work, and live knowing you’ve insulted your fans and in general made yourself look stupid, or you can let it go and allow people to build upon the culture around them as humans have been doing since prehistory.
Re: Why stop at distribution?
I agree. Art is culture and a form of communication.
Unfortunately, for the publishers, labels, etc., art, culture, and even artists are just commodities to be sold in order to make money, which is the only god they worship. All value, to them, is monetary value. Fans are a market opportunity, not a source of inspiration or collaborators or anyone to respect. Artists are just resources to exploit and toss away when their ability to make you money has dried up. At least you negotiated to own their copyrights via contracts, so you can dump the artist without losing any remaining profitability in their works.
When you only speak the language of money, someone speaking about art and culture in ways that aren’t related to making money are speaking a foreign language to them. That language barrier is why they will never willingly negotiate lower durations for copyright, looser restrictions for fair use, or any reduction in their ability to squeeze more blood money from their turnip customers.
Copyright trolls
Please sign this petition calling on our government to end copyright trolling.
https://petitions.whitehouse.gov/petition/work-modify-copyright-laws-end-predatory-practice-copyright-trolling/3cGn2JFL
Speaking of digital downloads...
I urge you all to follow the case surrounding ReDigi at the moment.
Needless to say, if ReDigi lose then the companies of the future will know what to do: encrypt media, stamp out the DVD player, and crush the DVD entirely.
“But digital downloads don’t count as DVDs because… they are just different!” There comes a point where spelling out such piffle would be an insult to the intelligence of others.
Importation Issues
My understanding of the distribution right is that it was meant as a way to deal with importation issues. Suppose a book is copyrighted in the US but not in Canada. One problem would be that people would make the copies in Canada(legally) and then sell them in the US. THe distribution right was meant to address that.
The US copyright statute has a separate section dealing with importation rights now, but it’s still somehow tied to the distribution right I believe.
Re: Importation Issues
The distribution right is the direct descendant of the publication right. Publication was a big deal under the 1909 Act since it marked the end of common law copyright protection and the beginning of statutory copyright protection. To this day, the date a work is first published/distributed is significant under the Act.
On the internet, EVERYONE is a distributor whether they realize it or not…
Upload a new pic to your FB page?
Write a new blog?
Tweet something?
New vid on YouTube?
See a hot chick pic on 4chan and gonna use it on your desktop?
Maybe a new song to use as a ringtone?
Face it, we’re ALL pirates. Doesn’t matter whether the intent is to make money or just to amuse ourselves…
So let’s stop this ‘piracy apologist’ trash talk…
Can you really rent a movie from Netflix?
“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.
Digital media is “fixed by any method…later developed”. It can be “perceived, reproduced, or otherwise communicated…with the aid of a machine or device”. The “copy” includes the “work”, and the original “material object” on which it was stored.
In what way does this not apply?
Re:
In what way does this not apply?
So the copy would have to be the hard drive the work is stored on, or the section(s) of the hard drive, since that’s the only material object involved. That is not distributed, so no copy is distributed either. Right?