What's At Stake In Apple/FBI Fight: Who Gets To Set The Rules That Govern Your Privacy & Security

Copyright Office Decides To Rewrite Copyright Law Itself, Blesses A 'Making Available' Right That Isn't There

from the not-such-a-good-look dept

Wed, Feb 24th 2016 10:36am — Mike Masnick

The Copyright Office has decided to take a stance on copyright law that requires two slightly odd things. First, it requires ignoring what the Copyright Act actually says and then, separately, it requires pretending that the law says something that it clearly does not say. That's pretty incredible when you think about it.

For quite some time now there have been ongoing legal fights in the copyright world over whether or not there's a "making available right" in copyright law. The issue is actually super important. 17 USC 106 lays out the only six exclusive rights granted to rights holders under copyright. They are:

to reproduce the copyrighted work in copies or phonorecords;
to prepare derivative works based upon the copyrighted work;
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;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Now a quick reading of this would suggest that you've most likely violated 106(3), the "distribution" right (assuming it's not a situation where there's fair use or some other such defense), if you share a digital file. But there's a technical problem with this, which is that the "Definitions" part of the law says that the word "copies" only applies to "material objects." Digital files, as you might note, are not material objects. Now, to be clear: courts have almost universally rejected this argument when it comes up. Basically because it's inconvenient. But it is what the law says.

But there's also a separate question here: what if you, say, had a file of a copyright-covered work, and put it in a folder that was "available" via a peer-to-peer network... but the file was never actually downloaded. Then what right listed above would you have violated? Notice that the distribution right not only appears to require distribution (which would mean the actual complete file transfer) but even limits distribution further to "by sale or other transfer of ownership, or by rental, lease, or lending." If there's no "transfer of ownership" -- such as if someone just makes a copy -- then is that distribution? Or is it just an issue that can be covered by 106(1)'s "reproduction" right?

This is the big question around "making available." A number of people (generally speaking they come from the traditional copyright legacy industries) simply try to whitewash this whole thing and argue that simply having the possibility of distributing is distribution itself. Courts in the US have been very mixed on this issue. We've been covering rulings that have gone both ways for over a decade now. But should "making available" -- even if no actual distribution happens -- be considered "distribution" in light of both what the law actually says, and the basic knowledge of what "distribution" means?

Lately, the "making available" crowd has been trying to force the issue, either making sure that "making available" is explicitly included in any copyright reform and/or by making sure it's in various trade agreements. And now the Copyright Office has weighed in on the matter insisting that, despite plenty of evidence to the contrary, "making available" already violates the distribution right. A key issue in this new paper is the WIPO Copyright Treaty (remember what I said about sneaking this issue into international treaties?). Article 6 of that treaty defines the "right of distribution" to include:

Authors of literary and artistic works shall enjoy the exclusive right of authorizing the making available to the public of the original and copies of their works through sale or other transfer of ownership.

It's noteworthy, of course, that a key reason for large parts of the WIPO Copyright Treaty was a way for Hollywood to push through the DMCA, which Congress had previously rejected. As the crafters of the DMCA are now totally proud to admit, after Congress turned them down, they ran to Geneva to put the same ideas into WIPO and then ran back to the US and got the DMCA approved in 1998. However, while the DMCA included a bunch of other stuff, it's notable that it did not change the existing language (seen above) around a distribution right. The Copyright Office interprets this to mean that Congress assumed that the existing 106 rights include a making available right.

During the past two decades, U.S. government officials have uniformly maintained that the Copyright Act’s exclusive rights, taken together, cover the full range of conduct encompassed by the making available right, meaning that such conduct will implicate and be governed by one or more of the Section 106 exclusive rights, including, for example, the distribution, public display, and public performance rights. Subsequent Congresses have reaffirmed this conclusion through their approval, between 2003 and 2011, of a dozen free trade agreements with foreign nations obliging the United States to provide a making available right, determining in each case that adoption would not require changes to U.S. copyright law.

The paper dismisses the courts who have ruled that there is no making available right in the US as "failing to discuss or even acknowledge the international obligations of the United States." As we first discussed well over a decade ago, the second you hear someone claim something about "the international obligations of the United States" in regards to copyright law, they're trying to hide the fact that the law doesn't really say what they want it to say. That's the case here.

Besides, a more complete reading of WIPO suggests that it doesn't support a making available right to the extent the Copyright Office now claims. For example there's a footnote on that "distribution" right definition in the WIPO agreement that says "As used in these Articles, the expressions “copies” and “original and copies,” being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects." Notice that, just as with US law and "material objects," WIPO says it only applies to "tangible objects." Based on that, it actually seems fairly clear that even if there's a "making available" right in the distribution right, it couldn't apply to purely digital files, which are not "tangible objects."

The Copyright Office basically says, okay yes, sure that's what US law and the WIPO treaty say, but let's just ignore that part because, man, what the law actually says is hellishly inconvenient for what we want it to say. It waves off the "tangible" or "material" objects argument as simply being nonsense, despite the fact that it's written into both the WIPO Copyright Treaty and US copyright law:

Such a narrow view of the distribution right, of course, would wholly upend protections for copyright owners online and therefore defeat the very purpose of the WIPO Internet Treaties—that is, to confirm exclusive rights for copyright owners in the digital age.

The Copyright Office similarly rejects the other limiting factor on the distribution right under US Copyright law, the part that says that distribution can only be made "by sale or other transfer of ownership, or by rental, lease, or lending." But, the Copyright Office just laughs that off as well as just being silly talk, despite being what the law actually says.

In fact, the Copyright Office explicitly claims that the distribution right in 106(3) not only includes a making available right, but that it clearly applies to purely digital files. Because it says so:

Within the particular context of downloads, U.S. law provides the making available right through the exclusive right of distribution under Section 106(3). While some courts have failed to find distribution in the absence of evidence of completed transfers, and therefore declined to recognize claims based solely on making copies available to the public for download, the Copyright Office concludes that the appropriate reading of Section 106(3) in the context of making available claims is that it covers offers of access.

In short, the only way to reach the conclusion the Copyright Office reaches is to (1) ignore what the law actually says and (2) add in something that the law does not say. And then say that Congress must have intended it that way.

There's a lot more in the full paper which is worth reading, but it looks as though the Copyright Office basically decided to side with Prof. Peter Menell, who has been pushing this theory of making available for a while. This was countered by Prof. Rick Sanders who noted that Menell (who also basically rewrote a key section in the popular Nimmer on Copyright treatise on this subject) appeared to be focusing on what he wanted the law to say rather than what it actually said -- and that he appeared to be jumping the gun before the courts had truly decided the issue. This debate has resulted in quite a bit of back and forth sniping at one another. If you feel like really delving into the issue, I'd suggest following a bunch of those links -- the last one of which gives a fairly compelling argument for how Menell totally misrepresents the historical arguments he relies on to make his point.

Either way, it's not necessarily a huge surprise that the Copyright Office came down the way it did. In fact, it's not a surprise at all. But it is at least somewhat disappointing that the Copyright Office has decided that it can create a right that isn't written into the law and insist that must be what Congress meant all along, while at the same time ignoring the stuff that is written in the law and saying that couldn't possibly have been what Congress meant.

Making-Available-Right (PDF)Making-Available-Right (Text)

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: copyright, copyright office, distribution, making available, peter menell

34 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 24 Feb 2016 @ 10:45am

Par for the course really
Copyright law seems to bring out the greediest in some people, just see for example those that argue that 'for limited times' means 'eternity minus a day', and/or argue that infinite retroactive extensions to copyright are perfectly in line with the 'limited times' language so long as no individual extensive is infinite.

If they can't buy the law that they want, they just 'interpret' it to mean what they want it to.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 10:50am

We don't care what the law actually says.
We don't have to care.
We're the copyright office.
[ link to this | view in thread ]
JD, 24 Feb 2016 @ 11:08am

First sale doctrine?
Under their interpretation of the law and WIPO treaty, did they just kill off (or argue to kill off) the First Sale doctrine?
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 11:09am

Sounds like its finally time
Since the copyright office has started writing its own laws, I think it is time to start over from scratch. The ratcheting of rights away from the people and towards the gatekeepers is no longer even pretending to be in the interest of the public.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 11:12am

"Making available" itself shouldn't be any more illegal than leaving your window curtains open while you're watching a movie in your living room would constitute a public performance.

Of course the MPAA would argue that a single person locked in a bomb shelter watching TV is a public performance if it would benefit them financially or legally, so we can't trust what they would say on the matter.
[ link to this | view in thread ]
Almost Anonymous (profile), 24 Feb 2016 @ 11:26am

New concepts
Part of the problem, of course, is that the folks that wrote the original copyright laws did not (or could not) foresee a time when things didn't have to be "real" to exist. As much as I despise most things copyright, and I totally understand Mike's point here, the fact is that if the concept of digital files had been conceived then, they would likely have included it in the way the Copyright Office describes.

However, since the Copyright Office has no problems at all with unlimited retroactive clawbacks, I say screw them and their interpretations.
[ link to this | view in thread ]
Mike Masnick (profile), 24 Feb 2016 @ 11:30am

Re: New concepts
Part of the problem, of course, is that the folks that wrote the original copyright laws did not (or could not) foresee a time when things didn't have to be "real" to exist. As much as I despise most things copyright, and I totally understand Mike's point here, the fact is that if the concept of digital files had been conceived then, they would likely have included it in the way the Copyright Office describes.

Yes. I actually agree. I think that given everything about copyright, it *should* include digital files. But that's not what the law says. And it does seem weird to say "well, let's just ignore that" rather than, say, fixing it.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 11:32am

Unfortunately, it doesn't matter what the Copyright Office puts in its policy, rules or whatever. It doesn't make it any more enforceable as a matter of law.

Unless congress updates the Copyright Act, whatever the Copyright Office decides to create or add to its rules is worthless in any court of law. It amount to nothing more than wishful thinking on the part of the Copyright Office.

Those morons rubber-stamp anything that the media industry demands, just like the moron judges in the FISA courts.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 11:35am

Seems to work for every other government agency to reinterpret what the law actually says then do what they want while ignoring current laws.
[ link to this | view in thread ]
DannyB (profile), 24 Feb 2016 @ 12:07pm

Re: Par for the course really
It really is par for the course. We've torn up most other rights. The lawmakers are wholly owned agents of corporations.
[ link to this | view in thread ]
DannyB (profile), 24 Feb 2016 @ 12:07pm

Re: We don't care what the law actually says.
Maybe they really do have to care?

Any possibility of greasing the right palms here or there?
[ link to this | view in thread ]
PRMan (profile), 24 Feb 2016 @ 12:49pm

Re: Re: New concepts
Honestly, I actually think that lending applies to digital files so the law applies.

Also, if a company is selling a copyrighted knockoff and never actually sold one (but it's sitting on the shelf), are they distributing it?
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 24 Feb 2016 @ 12:54pm

Authors and artists don't deserve any rights or protections. Everything they create should immediately be free to me.

Now someone go make me a sandwich and bring it to me right now.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 1:17pm

Re:
...it doesn't matter what the Copyright Office puts in its policy, rules or whatever. It doesn't make it any more enforceable as a matter of law...

And that's why you'll read in various court cases that the court can only enforce the law as it's actually written, not as you think it's written.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 1:42pm

Re:
That is the single saddest attempt at trolling I have ever seen. Bravo sir.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 1:50pm

Re:
Do authors and artists have fewer rights than others?
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 2:17pm

Re: Re: Re: New concepts
Exactly what I was going to say, except for the knockoff part.

Even a legitimate publication of a record or book or whatever is still being distributed if it sits unsold on the shelf, and this is what this is about isn't it?
"Making available" is exactly the same as distribution. If you don't have the rights to something but put it on the internet then there is a real intent there that someone will take it. Whether someone does or not should be immaterial.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 2:20pm

Re: Re:
And which would those be? There are more than enough court cases that contradict each other that makes it clear that the law is now completely made up on the spot these days by judges.

The English language is constantly twisted in court to mean or justify shit that it was never intended to restrict, promote, or address.
[ link to this | view in thread ]
JEDIDIAH, 24 Feb 2016 @ 3:24pm

Repeat the Big Lie often enough...
Do they? Dunno. They should. This is not a natural right we're talking about. The pro-corporate rhetoric just frames it as such.

Copyrights in general are entirely optional. They exist not as natural rights but as something to suit a given public policy objective. Finally, they are meant to expire. Natural rights generally don't do that.
[ link to this | view in thread ]
SpaceLifeForm, 24 Feb 2016 @ 4:20pm

An attack on FOSS too
In particular, GPL.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 4:47pm

Re:
Anonymous64 just hates it when due process is enforced.
[ link to this | view in thread ]
Immaterial Object, 24 Feb 2016 @ 5:18pm

Signals are not material?
I do tend to think that the copyright office rules are wrong, but not for the reasons stated above.

What's this about digital files not being material? Does this mean that electricity and magnetism aren't material? Material objects does not mean tangible objects. It means, an object having a real physical existence independent of mind or consciousness. Digital files certainly are that.

What's really wrong with the copyright office (and much overly restrictive legal doctrine) is that the body of the constitution is modified by the first amendment. The first amendment contains no exception for copyright law. Yet, the copyright office and courts act as if the first amendment doesn't apply. Our copyright office therefore acts as if there's no issue of freedom of expression involved in figuring out what the parameters of copyright protection are. But under a Supreme Court that says, spending money is protected speech, but whistleblowing usually isn't protected, what do you expect?
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 5:46pm

Hotaling
See

Hotaling v. Church of Jesus Christ of Latter Day Saints, 1997

In this appeal we hold that a library distributes a published work, within the meaning of the Copyright Act, 17 U.S.C. Sections 101et seq., when it places an unauthorized copy of the work in its collection, includes the copy in its catalog or index system, and makes the copy available to the public.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 5:48pm

Re: An attack on FOSS
How so?
[ link to this | view in thread ]
TechDescartes (profile), 24 Feb 2016 @ 5:48pm

There’s No “I” in Team
But you can’t spell “distribution” without u and i.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 5:50pm

Re: Re: New concepts
It's interesting because then the copy protection extremists would simply try to argue that it is the spirit of the law that should be interpreted. Just like they try to argue the same thing with Aereo when they try to claim that a legal loophole technicality violates the spirit of the law and the letter of the law should be disregarded in favor of the spirit.

But then copy protection extensions and having copy protection last forever minus one day is perfectly fine because then it's the letter of the law that should be interpreted.

They argue for the spirit of the law when it suits them and for the letter of the law when it suits them. They don't care for neither, only for themselves. Just like they don't care for the artists nor the public nor the quality of work.
[ link to this | view in thread ]
John Fenderson (profile), 24 Feb 2016 @ 7:00pm

At least they're consistent
A number of people (generally speaking they come from the traditional copyright legacy industries) simply try to whitewash this whole thing and argue that simply having the possibility of distributing is distribution itself.

I understand why they would think that this makes sense. These are the same people, after all, who honestly seem to think that losing potential profit is the same thing as losing profit.

Their worldview is dangerously distorted, but consistently so.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 7:08pm

Re: Re:
And that's why you'll read in various court cases that the court can only enforce the law as it's actually written, not as you think it's written.

The law means whatever the judge says it means.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 7:13pm

Re: Signals are not material?
Does this mean that electricity and magnetism aren't material?

Yes. They are forces, not matter.

Material objects does not mean tangible objects. It means, an object having a real physical existence independent of mind or consciousness.

Umm, no. Material is made of matter.

Digital files certainly are that.

Hardly.
[ link to this | view in thread ]
Anonymous Coward, 24 Feb 2016 @ 7:17pm

Re: Re: New concepts
I think that given everything about copyright, it *should* include digital files.

Why not analog?
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 1:04am

"And since we're revising copyright law we also have a proposal to extend the duration of copyright from our friends at Disney ..."

Not said but implied ;)
[ link to this | view in thread ]
bwburke94 (profile), 25 Feb 2016 @ 6:59am

As much as I hate to say this...
I think the Copyright Office has a point. Digital files do need copyright protection of some sort.

Now, the whole "making available" thing is bullshit, but in the modern world there's no reason for the term "copies" to only apply to physical material objects.
[ link to this | view in thread ]
Anonymous Coward, 25 Feb 2016 @ 8:51am

Re: Repeat the Big Lie often enough...
That was the point. Authorship and art are actually given extra rights and protections beyond what most laboring gets.
[ link to this | view in thread ]
Mike Masnick (profile), 25 Feb 2016 @ 10:39am

Re: As much as I hate to say this...
I think the Copyright Office has a point. Digital files do need copyright protection of some sort.

I agree. But if that's the case, the law should say so, rather than what it says. I wouldn't object to updating the law to clarify.
[ link to this | view in thread ]