May 21, 2014 | Category: Blog | Tags: academic, copyright, digital content, digital distribution, distribution right, file-sharing, internet, making available theory, Menell's Lost Ark, Nimmer | Comments: 0
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Prof. Menell Comments on 15% of My Article; I Respond.
This is the first of a series of blog posts in which I respond, in detail, to the following assertion by Prof. Peter Menell in a recent blog post post made on the Media Institute’s website:
Mr. Rick Sanders also questioned my exploration of legislative history, suggesting that it is improper to consult legislative history predating the enacting Congress. His assertion overlooks Supreme Court opinions in Kirtsaeng, Tasini, CCNV, Abend, Dowling, and Sony [a/k/a “Betamax”] adverting to 1976 Copyright Act legislative history predating the enacting Congress.
Prof. Menell was, indirectly, responding to one (of several) arguments I made in an article I wrote on whether the distribution right includes a “making available” right, i.e., whether just making something (a book or digital song file) available (for sale or download) violates the distribution right. I was, in turn, responding to Prof. Menell’s re-writing of the section of the authoritative treaties on copyright law, Nimmer on Copyright. Prof. David Nimmer, who maintains (and mostly writes) Nimmer on Copyright had previously either (depending on whose recollection you’re using) taken no position on the issue or was leaning against the existence of a “making available” right…
So, I’m talking about this article of mine that was kindly published by the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”). See part I here. The issue has to do with one of copyright law’s “exclusive rights”—i.e., things only the copyright owner and his or her authorized licensees may do with a copyrighted work—the right to distribute copies of the work to the public, which we’ll just call the “distribution right.” The question is whether the distribution right includes only consummated acts of distribution, or can also include attempts and offers to distribute.* Most (but not all) courts have held that the right is limited to consummated distributions, but rights holders would very much prefer the broader interpretation. The issue used to be academic, but with file-sharing, it matters now because it’s very difficult to detect consummated downloads**, but it’s easy to prove that the unlicensed works were “made available” for download on the file-sharer’s computer.
* Remember that the distribution right has an important exception: the first sale doctrine. Once you legally obtain a physical embodiment of the work, you may dispose of it as you see fit.
** Putting aside what I have…
Practitioner’s POV: Treatises Must Be Reliable
So, I’m very grateful to the Vanderbilt Journal of Entertainment and Technology Law (“JETLaw”)* for publishing my article on Nimmer on Copyright’s about-face on the “making available” theory of the distribution right**. You can read the whole thing here.
* Better known in my day as “JELP”: Journal of Entertainment Law & Practice.
** I explain what this is about near the end of this post.
Oh, are you back so soon? Well, yeah, I guess I failed to mention that it’s about 20 pages of formal prose (but the margins are so big!), there really are 169 footnotes,* and there are zero snarky asides. But you’re still interested, perhaps because you’ve heard this issue directly affects internet-based commerce**. Since you’re not a legal scholar*** and you don’t have tons of time, would I mind summarizing?
* Did I mention that I was grateful to JETLaw? I threw those footnotes together, but do you see how neat and perfect they are, and that they probably actually support the proposition they’re footnoting? You need to thank the JETLaw student editors for that. Since I was once a professional authorities editor, I know what…
How Many Licks? One, Two-hoo, *Crunch*, Three
Er, how many trials does it take to get to the center of a file-sharing case, where the plaintiffs have a point to prove and the defendant has nothing left to lose? Three, apparently (because no one can get there without biting). The Eighth Circuit Court of Appeals has made sure that there will be no more foolishness (opinion here).
I really did say that the music industries’ lawsuit against Jammie Thomas-Rasset could, in theory, last forever. A judge with a sense of humor could have issued remittitur after remittitur, and the music industry could have rejected it over and over, and new trials on damages could have been had again and again, and still no final order would exist to be appealed.
Fortunately for all involved, three trials are enough. As the trial court pointed out in its opinion, you can have as many trials as you like, but all you’re doing is skirting the constitutional question of how high statutory damages* can get in copyright cases. So, with what I take to be the tacit approval of all the parties, the judge ruled on the constitutional issue, instead of offering remittitur to the…
When Is a Phonorecord Not a Phonorecord?
Last time, we finally figured out how ReDigi operates and how it plans to get around the fact that it must make at least one (and often two) intermediate copies of a song file in order to complete the sale of the song file. ReDigi’s solution is to structure itself as an Amazon-style music locker and rely on space/format shifting for those intermediate copies.
But this doesn’t get around the other concern I raised (way back here), which we might call the “phonorecord problem.” Recall that the nub of the RIAA’s argument is that the First-Sale Doctrine is limited the distribution right. The RIAA’s point was that the intermediate copies exercised the reproduction right and, therefore, fell outside the scope of the First-Sale Doctrine. While I thought there might be a different way of looking at that issue, it turns out ReDigi is fine with the RIAA’s argument, since it thinks it has an alternate (and better) legal theory regarding those intermediate copies.
The “phonorecord problem” is more fundamental. Under a strict and plain reading of the Copyright Act, the distribution right is limited to the distribution of physical embodiments of the copyrighted works, e.g.,…