IP Lawyer Explains Why Uploading Files May Not Be Distribution For Copyright

from the forget-making-available... dept

Thu, May 8th 2008 11:44am — Mike Masnick

While there's been a big ongoing discussion in various courtrooms concerning the question of whether or not making unauthorized files available for download is copyright infringement, there's another interpretation of copyright law that many copyright scholars agree with -- but which the RIAA and the MPAA would certainly prefer you not hear. I'm at the San Francisco MusicTech Summit and on an early (and not particularly well attended) session in the morning, intellectual property lawyer Andrew Bridges made a fascinating argument: that if you follow the actual text of existing US copyright law, uploading unauthorized content does not infringe the distribution rights of copyright. This goes even beyond the whole "making available" question, by saying even the uploading doesn't violate the law directly.

The reasoning requires a very literal reading of the law. Section 106 of copyright law lists out the specific "exclusive rights" granted under copyright law to copyright holders, including things like reproduction rights, performance rights and distribution rights. The text of the distribution right 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;" From this reading, one might conclude that uploading a file is a "copy." But if you go to Section 101, which holds the definitions for the law, it states (quite clearly):

"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 the emphasis on material objects. As such, you can read the law, as written, to conclude that passing around the song itself, which is not a material object, is not actually an infringement of the distribution right under the current law.

Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it. He says he'll continue to make the argument, but that it has not been effective. Also, as Bridges noted in making the original statement, just because the distribution right isn't infringed, doesn't mean there aren't other issues. For example, whoever downloaded the file downloaded it to a material object (the hard drive) probably violates the first exclusive right, the "reproduction" right. And, thus, an argument could be made that the person who uploaded the file contributed to the violation of the reproduction right. However, based on this argument, it does seem clear that uploading a file is not, technically, a violation of the distribution right under copyright law -- not that the courts recognize that. Of course, if the courts ever did recognize this fact, you could bet that within a matter of days, a Congressional Representative would introduce an amendment to copyright law to change the definition of "copy" to include content not tied to a material good.

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Filed Under: andrew bridges, copyright, distribution, eff, fred von lohmann, making available

43 Comments

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Anonymous Coward, 8 May 2008 @ 12:10pm

not going to work
The hard drive, that the song is transferred onto, becomes the material object.
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Anonymous Coward, 8 May 2008 @ 12:22pm

Is this guy really an IP Lawyer?

"A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission."
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ehrichweiss, 8 May 2008 @ 12:31pm

Re: not going to work
So, you're distributing hard drives with unauthorized media on them?
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barren waste, 8 May 2008 @ 12:34pm

Re:
Depending on the definition of "transitory definition" this only serves to reinforce the IP lawyer's point. According to this, merely listening to or watching content that has already been uploaded is not illegal, however the action of uploading it is. That is precisely what the lawyer said.
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Glurbie, 8 May 2008 @ 12:39pm

Re: Re:
I thought that what the lawyer precisely said is that the action of uploading is NOT illegal.
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Anonymous Coward, 8 May 2008 @ 12:40pm

Re: not going to work
But the blame then is removed from the person who is making the file available and is still a valid argument of definition.

You might read the final paragraph once more before you gloat too much about how clever you presume you are.
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Ljlego, 8 May 2008 @ 12:46pm

Copyright law
The tact that's being taken by the RIAA and MPAA in psychotically defending anything that they may or may not have claim to is pathetic. Outside of these organizations, you'll be hard-pressed to find someone who disagrees. However, the counterattack that's being taken by the general public - trying to circumvent copyright law through any imaginable loophole - is no better. By refusing to interpret a law, or bring it into the technological age, you hurt more people than just the RIAA and MPAA. Anyone who uploads anything original to the Internet with expectation of certain copyrights is now being shafted by this. To wit, no form of digital storage can be considered a "material object" in a traditional sense, because the files themselves aren't even tangible, and can indeed be changed at whim. Now, good luck trying to argue this point with a judge, but that's exactly the point. Reading the law entirely literally is just like fundamentalism, and it's not like the latter's been getting any good press lately.
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IQ60, 8 May 2008 @ 12:59pm

what does material really mean?
there is nothing more material than electrons or magnetic forces, is there?

the zeros and ones, the bits which form the digital copy, are "material" when they are transmitted over the wire as information embodied in electrons, and they are material when they are captured as a magnetic signature on a hard drive

if we really try to follow the material logic given to its ultimate end, a song or book or other copyrighted work may never exist in material form, because it could always be digital information captured via electrons or magnetic forces, and never be printed or pressed in vinyl...
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Anonymous Coward, 8 May 2008 @ 1:01pm

Re: Re: not going to work
"So you're distributing hard drives..."

Copyright covers reproduction rights, not just distribution rights.

Just because I use your paper and pen when I transcribe you a copy of a book doesn't get me off the hook.
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Griper, 8 May 2008 @ 1:03pm

Why does the RIAA/MPAA always go after the uploader and not the person downloading? It seems to me the one downloading is the person that "steal" the song.
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Anonymous Coward, 8 May 2008 @ 1:20pm

Re:
Is this guy really an IP Lawyer?...

Why didn't you provide a source for your quote? Just putting something in quote marks doesn't really mean much without an identified source.
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Willton, 8 May 2008 @ 1:27pm

Re:

Why does the RIAA/MPAA always go after the uploader and not the person downloading? It seems to me the one downloading is the person that "steal" the song.

If a person without the right to distribute makes it available to the downloader by uploading it, he is in no better position (and perhaps a worse position) than the downloader. Think of it in the non-digital context. If a record store not authorized to sell copies of a particular record does so anyway, does it make sense to say that the seller is less liable than the buyer?
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Anonymous Coward, 8 May 2008 @ 1:28pm

Re: Copyright law
However, the counterattack that's being taken by the general public - trying to circumvent copyright law through any imaginable loophole - is no better.
If the general public is against copyright law then maybe it's a bad law. And if the government hasn't remedied that then there's something wrong with the government. In that case there is nothing wrong with resistance.
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Willton, 8 May 2008 @ 1:30pm

Re: Re:
Why didn't you provide a source for your quote? Just putting something in quote marks doesn't really mean much without an identified source.

It comes from the Copyright Act, 17 U.S.C. Section 101. I imagine he figured people actually looked at Section 101 when Mike linked to it.
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Anonymous Coward, 8 May 2008 @ 1:36pm

Re:
It seems to me the one downloading is the person that "steal" the song.
Neither one is "stealing". Copyright infringement isn't theft.
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Anonymous Coward, 8 May 2008 @ 1:37pm

Re: what does material really mean?
there is nothing more material than electrons or magnetic forces, is there?
Wrong. Electromagnetic energy is not a material. You can download files all day long and your hard drive won't be one bit heavier at the end of the day.
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Willton, 8 May 2008 @ 1:46pm

Re: Re:
Neither one is "stealing". Copyright infringement isn't theft.

Would you be more comfortable with trespass?
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Ljlego, 8 May 2008 @ 1:50pm

Re: Re: Copyright law
If the general public is against copyright law then maybe it's a bad law. And if the government hasn't remedied that then there's something wrong with the government. In that case there is nothing wrong with resistance. I agree. I have always been a staunch supporter of the first line of the Declaration of Independence. But I don't think the general public is against copyright law in the least. You don't see anyone asking to make everything public domain so that Alexander Graham Bell can steal...sorry, wrong story. In all seriousness, copyright law is necessary, and I'm certain that people are not against it. The idiotic and archaic monopolies that abuse it to retain their domination are what people are against. Thus, the resistance to them has evolved to a resistance of copyright law, despite the fact that it could conceivably screw more people over than anyone would want to in the first place.
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Anonymous Coward, 8 May 2008 @ 2:15pm

Fahrenheit 451
It's a good thing they put in a definition limiting "copies" to "material objects" because without it some copyright holders might try to claim that "mental" copies, as in the book Fahrenheit 451, are also infringing. Copyright holders could then demand "listening" or "viewing" fees on all copyrighted works as compensation by default. Ever had one of those songs you couldn't get out of your head? Pay up?

No, it's good that copies are limited to "material objects".
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Anonymous Coward, 8 May 2008 @ 2:19pm

Judges and Laws
Now, before people get too excited about this, in a later panel this question was raised again, to the EFF's Fred von Lohmann. He agreed that this appeared to be a literal reading of copyright law -- and that just about every copyright scholar he's spoken to agrees -- but that every time he's argued it in court, the court has disagreed or ignored it.

The law means whatever the judge says it means.
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Anonymous Coward, 8 May 2008 @ 2:23pm

Re: Re: Re:
I guess he figured people would do the research for him.
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Anonymous Coward, 8 May 2008 @ 2:34pm

Re:
By this argument, simply remembering a song or movie, etc, could be infringement as the human brain has data "fixed" into a "tangible medium". I often playback songs or video or books in my head. Am I a "pirate"?
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Anonymous Coward, 8 May 2008 @ 2:42pm

Re:
According to that then, the uploader has indeed not infringed copyright by that means because the uploader sent only transitory signals. It is the downloader that captures the signals and fixes them in a manner "of more than transitory duration", if at all. If all the downloader is doing is listening then no infringement occurred at all except possibly as a "public performance".
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Anonymous Coward, 8 May 2008 @ 2:55pm

Re: Re: Re:
It comes from the Copyright Act, 17 U.S.C. Section 101. I imagine he figured people actually looked at Section 101 when Mike linked to it.
Maybe that was the source of his quote, maybe it wasn't. He didn't say, did he? It isn't up to the reader to try to find sources for the writer although some people seem to think "The Internet" is a source to cite.

And by the way, Mike actually linked to five separate sources for his story.
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Anonymous Coward, 8 May 2008 @ 3:11pm

Re:
The judge said "merely exposing music files to the internet is not copyright infringement".
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Anonymous Coward, 8 May 2008 @ 3:16pm

Re: Re: Re:
Would you be more comfortable with trespass?
I'd be more comfortable with "copyright infringement".
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Willton, 8 May 2008 @ 6:20pm

Re: Re: Re: Re:
Maybe that was the source of his quote, maybe it wasn't. He didn't say, did he? It isn't up to the reader to try to find sources for the writer although some people seem to think "The Internet" is a source to cite.

And by the way, Mike actually linked to five separate sources for his story.

This isn't a law review; this is a blog. While the guy probably should have cited his quote, lambasting him for not doing so is not warranted. It's entirely possible that given the text and form of the quote, the guy thought it was obvious that his quote was a legal definition. And considering the topic, he may have thought that it was obvious that the quote was a legal definition coming from the Copyright Act, namely Section 101, which, as Mike pointed out, lays out the definitions to terms used in the Copyright Act. In that case, I guess he was wrong to think that it was obvious.

Or maybe he's just lazy. In any case, I think that if you wanted to know where the quote came from, there are better ways to ask that question.
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Willton, 8 May 2008 @ 6:22pm

Re: Judges and Laws
The law means whatever the judge says it means.

I have a feeling that a federal judge may be a bit better at interpretting the law than a nameless commenter on a blog.
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Willton, 8 May 2008 @ 6:26pm

Re: Re:
Depending on the definition of "transitory definition" this only serves to reinforce the IP lawyer's point. According to this, merely listening to or watching content that has already been uploaded is not illegal, however the action of uploading it is. That is precisely what the lawyer said.

If that's the case, he defeats his own argument.
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Anonymous Coward, 8 May 2008 @ 7:03pm

Re: Re: Re: Re: Re:
While the guy probably should have cited his quote, lambasting him for not doing so is not warranted.
I don't think I did (I could have). I merely questioned the lack and noted the consequence.

In any case, I think that if you wanted to know where the quote came from, there are better ways to ask that question.
In hindsight, I'd say that's probably true.
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John Roberts, 8 May 2008 @ 7:17pm

Re: Re: Judges and Laws
I have a feeling that a federal judge may be a bit better at interpretting the law than a nameless commenter on a blog.

Which seems to agree with AC's comment. So what's your point? Are you just agreeing with "a nameless commenter on a blog"?
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Willton, 8 May 2008 @ 9:31pm

Re: Re: Re: Judges and Laws
Which seems to agree with AC's comment. So what's your point? Are you just agreeing with "a nameless commenter on a blog"?

I detected a strong hint of sarcasm and derision from the comment "The law means whatever the judge says it means." My point in responding was to point out that while to some degree that is correct, judges (especially federal judges) are not loose cannons that interpret the law just to suit their fancy. As someone who interned for a federal district judge, I know first-hand how much measured thought goes into a judge's opinion, and I know that they are not allowed to just free-wheel their decision-making. The statement "The law means whatever the judge says it means," is a largely ignorant thing to say.
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Plina, 8 May 2008 @ 9:33pm

Actually
Actually, electrons do have weight.

Its information that doesn't weigh anything in and of itself.

http://wiki.answers.com/Q/What_is_the_weight_of_an_electron
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John Roberts, 8 May 2008 @ 11:39pm

Re: Re: Re: Re: Judges and Laws
I detected a strong hint of sarcasm and derision...

Irrelevant. Sounds like a personal problem to me.

As someone who interned for a federal district judge, I know first-hand how much measured thought goes into a judge's opinion, and I know that they are not allowed to just free-wheel their decision-making.

Regardless of how much thought goes into a judge's opinion, the fact remains that the judge is the final arbitrator of what the law means in his/her court. If you don't think so, try telling one otherwise sometime. And ultimately, the judges that sit on the SCOTUS have the last word on the meaning of the law. So indeed, the law means whatever they say it means.

The statement "The law means whatever the judge says it means," is a largely ignorant thing to say.

Talk about ignorant things to say. For someone who supposedly interned for a federal judge you seem surprising ignorant of the place of the judiciary in the US legal system. In fact, I find it unbelievable. But just in case, if you truly know of some higher authority than the judiciary in interpreting the law, then by all means please tell us. Otherwise, "The law means whatever the judge says it means".
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Anonymous Coward, 8 May 2008 @ 11:46pm

Re: Actually
"Actually, electrons do have weight."

Indeed they do. However, energy does not and it is energy, not electrons, that is used to store information on a hard drive.
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Anonymous Coward, 9 May 2008 @ 7:31am

Re:
Yay you managed to quote a related definition as a follow-up to an attack on the original poster's credentials.

Now that you have provided us with a second interesting definition... what's your point?
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mark, 9 May 2008 @ 7:51am

phonorecord?
"other than phonorecords, in which a work is fixed by any method now known or later developed" wouldn't a mp3s or audio file be a type of phonorecord that was later developed?
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Anonymous Coward, 9 May 2008 @ 12:15pm

Re: Re: Actually
e = mc^2

Energy = Matter = Energy

And energy isn't what's storing the information, it's the magnetic state of the material itself. This line of argument is as stupid as saying "When you store music on a record it's the groove that has the song, not the plastic material itself!"
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Anonymous Coward, 9 May 2008 @ 4:39pm

Re: Re: Re: Actually
e = mc^2
Energy = Matter = Energy

In nuclear reactions, yes. However, typical hard drives are not nuclear reaction devices and do not use energy-matter conversion in their operation. And outside of nuclear reactions, changing the energy of a system does not change it's mass.

And energy isn't what's storing the information, it's the magnetic state of the material itself.
Being an electrical engineer and having studied and worked with electromagnetic field theory I can safely say that you really don't know what you're talking about. Try studying Maxwell's equations sometime. In common hard drives, energy is used to store information in magnetic domains on the disk platters. These give rise to magnetic fields and magnetic fields can store energy. When the disk head reads or writes the platter it uses a magnetic energy field between the head and platter to do so. If you know of a way to do that without using energy, I'm all ears. Additionally, no electrons are stored on the platter in the process and the platter's mass doesn't change. Now, there have been storage systems that used electron beams to store information, but not in the typical PC.

This line of argument is as stupid as saying "When you store music on a record it's the groove that has the song, not the plastic material itself!"
No, really stupid is someone spouting off stuff like "e = mc^2" without having a clue as to what they're talking about.
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Anita, 12 May 2008 @ 12:55am

Actually
Tough to understand what you really meant by explaining. Actually its little too detailed and subjective..Courts don't goto such details. But thanks for the explaination. I am a mathematician with IP expertise.
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Survivor, 12 May 2008 @ 6:29am

Nitpicking, but....
The whole issue is clouded by the attempts at defining copyright. You must define it precisely, else you get something pathetic whereupon a guy might get "copyrights" of absurd/riduculous universal generality (e.g. patent the concept of "song", of "programming" :-) and so on). Therefore it has to state specifics, like what kind of material ("composed of matter" :-) ) object is being defined.

To avoid an endles discussion, it simply cannot be done any better than it has been. And that means you must read literally the text of the law, not trying to interpret "the intentions" behind it (a totally subjective reading!).

And that on its turn implies the "IP lawyer" has got a serious argument. Indeed a CORRECT argument, albeit the courts may err ignoring it.
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Anonymous Coward, 10 Nov 2009 @ 7:15pm

Re: what does material really mean?
More importantly, any use of digital audio requires creating copy after copy after copy -- albeit on the same computer. A copy in memory, a copy on the hard disk, a copy being processed in the dsp...

From a certain perspective even the sound coming out of speakers is a copy.

But my understanding is that by a literal reading of the law, none of those copies is legal! That's the real direction this kind of argument ought to take.
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Anonymous Coward, 10 Nov 2009 @ 7:17pm

Re: Re: what does material really mean?
"Material" doesn't mean "massive." It just means physical. By this argument, the information on an abacus isn't material.
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