Aug 11 2008

When does distribution of a copy occur on the Internet?

The answer should be when a copy is placed (distributed) into an environment from which third parties are invited and expected to acquire their own copies by downloading or otherwise.

            The question of when a distribution occurs on the Internet is a hot topic in both criminal law (e.g., distributing pornographic material) and copyright law (e.g., violating the exclusive right to distribute the work). It is important because it bears on what proof must be mustered to establish violation of the distribution right in a peer-to-peer online system or to show a criminal law violation for distributing illegal material on line. 

 

Must the proof be that the defendant actually pushed the copy into the hands of third parties?  The answer must be no. 

 

Some argue that to distribute a copy the actor must initiate a direct exchange giving the copy to a another person.  But taking all the steps to place a copy in a known distribution system from which others take copies surely suffices.  Courts so hold.  One court, in a criminal law case, analogized placing a copy in a peer-to-peer system to operating a self-service gas station:

 

[Defendant] may not have actively pushed pornography on Kazaa users, but he freely allowed them access to his … stash of images and videos and openly invited them to take, or download, those items. It is something akin to the owner of a self-serve gas station. The owner may not be present at the station, and there may be no attendant present at all. And neither the owner nor his or her agents may ever pump gas. But the owner has a roadside sign letting all passersby know that … they can stop and fill their cars for themselves, paying at the pump by credit card. Just because the operation is selfserve, or … we do not doubt for a moment that the gas station owner is in the business of ‘‘distributing’’… gasoline”    

 

U.S. v. Shaffer, 472 F3d 1219, 1224 (10th Cir. 2007).

 

            But must the complaining party show that particular people accepted the invitation and obtained copies?  No.  The wrongful act is not delimited by a particular transaction, but by distribution in general.

 

            But must the complaining party show that at least someone accepted the invitation?  Here we must distinguish between questions about what is sufficient proof and what is the legal standard being proven.  Proof that a copy entered an active downloading environment may well create an inference that the invitation to “take” a copy was accepted by someone.

 

            But can distribution occur even if no copies exchange hands?  Some courts, equating this possibility with a “make available” right under copyright law have said no.  But the answer in the statute is yes, at least in some circumstances.

 

            Copyright law does not define “distribution”, but does define one type of distribution – called “publication” – which includes an offer to distribute.  Here is the definition: 

 

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.

 

The Electra case correctly held that this definition provides a measure of what the term “distribute” means in copyright law - an offer that constitutes “publication” is a distribution under copyright law.

 

            But this leaves the final question of whether other offers qualify as a distribution.  Electra held that they did not and that there must be an allegation that the offer be for purposes of further distribution etc.  But nothing in the statute suggests that this language restricts the meaning of distribution.  Instead, the definition illustrates of one type of distribution and indicates that distribution can occur by making an offer, rather than only by actually delivering copies (e.g., an offer to distribute can be a distribution for purposes of copyright law).  There are those who disagree, but it seems to me that this is the clear meaning of the statute.

 

            But what of the “make available” right? 

 

The issue is open.  This concept comes from language in an international treaty.  The scope of this proposed right seems similar to that of an offer to distribute, but the latter, grounded in the statute, suggests an active role by the defendant intending actual use by others.  Clearly, however, placing a copy in an active downloading and transfer system online suffices to establish an offer to transfer a copy or allow it to be transferred, and an act making a copy available to others.

Written By:Chris Manos On November 3, 2008 2:51 PM

Technology is perhaps mooting this question. KaZaA and its close relations are not Napster. "Making available" as a route to proving secondary infringement should be superfluous when direct infringement is available. The structure of KaZaA is something along the lines of "call and response", the one seeking a particular file broadcasts a 'request' through a network. Individual PCs that are 'listening' and have the file respond with 'it's available here'. The seeker of the file then sends another message, 'please make me a copy and send it to this (IP) address'. The next step is that the PC where the file resides makes a copy and sends it to an IP address. This is classic, direct infringement for unauthorized copying and distribution. Copyright holders may easily demonstrate direct infringement whenever a copy of a work is 'received' from a KaZaA enabled PC. The 'downloading' model does not match the physics of what is happening within these programs. If I make a phone call to a number and say into the phone, "send me a copy of Yellow Submarine; mail it to this address" and two days later a CD arrives with Yellow Submarine on it, the person who answered the phone, copied the song onto the CD and sent it to me has infringed directly. KaZaA is no different. Or so it seems to me.

Written By:Kevin Freckman On February 9, 2009 1:56 PM

Our non profit organization posted a video on our website. It clearly shows our name, and sample of a motivational assembly by one of our employees.

However, the video had been downloaded by at least one person who, to say the least, does not support our point of view, and posted on YouTube and it distributed it to at least blogger (who posted the video on his blog, with both sites posting several crude and misleading comments about our employee, our organization, and the work we do.

Several bloggers have now posted the video (not as a link, but as a video file), accompanied by the same kind of crude and vicious remarks. We are contacting sites and asking them to remove the video, because of ownership and intellectual property rights. YouTube removed it, but we're running into those who believe that they can do what they like with it.

Can we push the property rights and copyright issues? Do you any advice -- however speculative -- as to what we could do?

I realize that you may not have intended this as a forum to ask such questions, but I've not been very successful in finding answers. Thank you for help! We need more resources like you the internet.

Kevin Freckman
Dayton, Ohio

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