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."
