IP Lawyer Explains Why Uploading Files May Not Be Distribution For Copyright
from the forget-making-available... dept
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.
![Hide This Hide this](https://ii.techdirt.com/s/t/i/topclose.png)
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: andrew bridges, copyright, distribution, eff, fred von lohmann, making available
Reader Comments
Subscribe: RSS
View by: Time | Thread
not going to work
[ link to this | view in chronology ]
Re: not going to work
[ link to this | view in chronology ]
Re: Re: not going to work
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.
[ link to this | view in chronology ]
Re: not going to work
You might read the final paragraph once more before you gloat too much about how clever you presume you are.
[ link to this | view in chronology ]
"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."
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
If that's the case, he defeats his own argument.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
And by the way, Mike actually linked to five separate sources for his story.
[ link to this | view in chronology ]
Re: Re: Re: Re:
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.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
In hindsight, I'd say that's probably true.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
Now that you have provided us with a second interesting definition... what's your point?
[ link to this | view in chronology ]
Copyright law
[ link to this | view in chronology ]
Re: Copyright law
[ link to this | view in chronology ]
Re: Re: Copyright law
[ link to this | view in chronology ]
what does material really mean?
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...
[ link to this | view in chronology ]
Re: what does material really mean?
[ link to this | view in chronology ]
Re: Re: what does material really mean?
[ link to this | view in chronology ]
Re: what does material really mean?
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.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
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?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Would you be more comfortable with trespass?
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Fahrenheit 451
No, it's good that copies are limited to "material objects".
[ link to this | view in chronology ]
Judges and Laws
The law means whatever the judge says it means.
[ link to this | view in chronology ]
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.
[ link to this | view in chronology ]
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"?
[ link to this | view in chronology ]
Re: Re: Re: Judges and Laws
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.
[ link to this | view in chronology ]
Re: Re: Re: Re: Judges and Laws
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".
[ link to this | view in chronology ]
Actually
Its information that doesn't weigh anything in and of itself.
http://wiki.answers.com/Q/What_is_the_weight_of_an_electron
[ link to this | view in chronology ]
Re: Actually
Indeed they do. However, energy does not and it is energy, not electrons, that is used to store information on a hard drive.
[ link to this | view in chronology ]
Re: Re: Actually
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!"
[ link to this | view in chronology ]
Re: Re: Re: Actually
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.
No, really stupid is someone spouting off stuff like "e = mc^2" without having a clue as to what they're talking about.
[ link to this | view in chronology ]
phonorecord?
[ link to this | view in chronology ]
Actually
[ link to this | view in chronology ]
Nitpicking, but....
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.
[ link to this | view in chronology ]