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?