The Rule of Law and Copyright's Distribution Right

Michael Carroll
May 23, 2008

As Bill Patry reports, District Judge Michael Davis has asked for briefing on whether he must order a new trial in the best-known P2P copyright infringement case against an individual. The reason is that Judge Davis is properly concerned that he committed legal error by accepting the RIAA's proposed jury instruction that equates the copyright owner's right of public distribution with a right of merely making copies available for distribution or reproduction.

Although it won't, the RIAA should welcome this development because the RIAA's effort to misconstrue the distribution right is another example of "be careful what you wish for."

If courts take the RIAA's argument seriously, which some have, then you or I have the right to download a DRM-free music file from Amazon or Apple or Napster or . . . and share that file with anyone over a P2P service. Huh? How can this be, you ask.

Well, if you, I, or a federal court, takes the language of the Copyright Act seriously, as we should, and if the RIAA's reading of that language were right, then it would work like this. Copyright automatically gives the owner a set of five exclusive rights, with some exceptions for certains types of works: (1) reproduction; (2) distribution; (3) public performance; (4) public display; and (5) adaptation (i.e. the right to prepare derivative works).

In a series of cases against users of peer-to-peer services, the RIAA has argued that to prove infringement of the distribution right, the owner does not need to prove whether any music files in a user's shared directory were copied or when they were copied because merely putting the file in such a directory and connecting to the Internet is enough to violate the exclusive right of public distribution.

The industry has a number of reasons for making this argument, one of which is that the argument makes it much cheaper to prove the industry's many infringement cases against individuals. But most of Section 106 of the Copyright Act was written without digital technology in mind, and courts have to apply the law as Congress has enacted it. If changed circumstances mean that the statute doesn't work the way it once did, courts can use the flexibility inherent in language to adapt the law, but at some point that flexibility is exhausted. If you think the law no longer works, you have to go back to Congress.

In my view, circumstances have changed so that the law no longer works the way it once did, but the reproduction right under the Copyright Act still gives music copyright owners sufficient protection without needing to turn the distribution right into a separate "making available" right. The RIAA is, of course, free to take a different view, but it has to persuade Congress that it's right. Persuading Congress to change the law is expensive and time consuming, and so industry would rather that courts simply give it this new right through creative statutory interpretation.

This kind of expedient thinking is deeply problematic. The RIAA routinely excoriates users of peer-to-peer services for failing to respect the rule of law. But the RIAA's "making available" argument is so at odds with the language of the Copyright Act that it calls the industry's own respect for the rule of law into question. Here's why.

The Copyright Act created separate rights of reproduction and distribution so that the copyright owner could go after the different links in the supply chain of an infringing enterprise. In the days of vinyl, the folks who manufactured bootlegs and unauthorized copies were not always the sellers on the street. So the reproduction right gives the basis for suing the manufacturer and the distribution right provides the basis for going after the retailer.

Specifically, Section 106(3) gives the copyright owner 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." This language breaks down into three elements that the copyright owner must prove to show infringement: (1) the transfer of "copies or phonorecords of the copyrighted work" (2) "to the public" (3) "by sale or other transfer of ownership, or by rental, lease, or lending."

There is no way that merely connecting to the Internet or to a peer-to-peer service with files stored in one's shared directory can be said to be a transfer of those files to the public. The RIAA's argument relies on some statutory sleight-of-hand by which it tries to substitute the definition of "publication" for the plain language of the distribution right in Section 106(3).

Although a few courts have accepted this argument, the tide is now running the other way. It'll be interesting to see how far it runs. If we really take the statute seriously, then, as I and others before me have argued (footnote 52), the truth is that the distribution right simply does not apply to file transfers over the Internet because such interactions are not the transfer of one copy from user A to user B but instead a reproduction of user A's copy for the benefit of user B.

But, let's accept for the sake of argument that making a file available on a peer-to-peer service is a distribution. Then we have to apply all the parts of the Copyright Act that govern distributions because Section 106 says that the exclusive rights it provides are given "[s]ubject to sections 107 through 122". That means the first sale doctrine applies.

When it comes to the copyright owner's exclusive right to distribute copies, the copyright owner gets one bite at the apple. Make your money on the first sale of a copy. Once the user has purchased that copy, the distribution right is exhausted. So, even though a purchaser's resale of that copy to a used record store is technically a distribution of the copyrighted work, Section 109 of the Copyright Act says that the purchaser "is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord."

So, here's where the DRM-free download comes in. If you or I purchase a copy (technically a digital phonorecord) of an mp3 file and store it in our shared directory, then the first sale doctrine applies to that file. And if making it available to others on a peer-to-peer service is a distribution, then under Section 109, you or I could legally distribute that copy to whoever wants it.

The RIAA would first say, ah, but you didn't actually purchase that copy. You only have a license to it. That theory, however, is going bust, as it did in the recent Vernor case.

The RIAA would then say, "no, no, no, you're not distributing that copy. You're letting others make their own copies."

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