{"id":4082,"date":"2016-09-28T13:24:35","date_gmt":"2016-09-28T17:24:35","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=4082"},"modified":"2026-02-03T21:07:15","modified_gmt":"2026-02-03T21:07:15","slug":"professors-mislead-fcc-on-basic-copyright-law","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2016\/09\/28\/professors-mislead-fcc-on-basic-copyright-law\/","title":{"rendered":"[Archived Post] Professors Mislead FCC on Basic Copyright Law"},"content":{"rendered":"

\"U.S.In a letter<\/a> submitted to the FCC late last week defending the Commission\u2019s deeply flawed set-top box proposal,[1]<\/a> a group of professors make an incredible claim: Everyone is perfectly free to distribute copyrighted works online however they please. No license? No problem! According to these professors, many of whom teach copyright law, copyright owners have no distribution right in cyberspace. If you think this sounds wrong, you\u2019re right! This claim sounds ridiculous because it is ridiculous, and it\u2019s simply amazing\u2014and troubling\u2014that professors would mislead the FCC in this way.<\/p>\n

The professors argue that a copyright owner\u2019s \u201cright to distribute encompasses the distribution of physical copies of a work, not electronic transmissions.\u201d In support, they cite no case law whatsoever. There\u2019s a good reason for this: None exists. The reality is that every single court that has ever considered this argument on the merits has rejected it. Time and again, this argument has been summarily dismissed by the courts. As the Nimmer on Copyright<\/em> treatise puts it: \u201cNo court has held to the contrary on this issue[.]\u201d Yet, the professors present this to the FCC as an accurate description of the law, with no equivocation whatsoever.<\/p>\n

In their defense, one can make a plausible argument that this follows from certain parts of the Copyright Act. And the professors do in fact cite these parts. They quote Section 106(3)<\/a>, which gives copyright owners the exclusive right \u201cto distribute copies . . . of the copyrighted work to the public,\u201d and Section 101<\/a>, which says that \u201ccopies are material objects.\u201d At first blush, one could question how it\u2019s possible to distribute a \u201cmaterial object\u201d online. Indeed, many academics have questioned this very thing. For example, one professor wrote<\/a> in 2001 that \u201ctransmitting copyrightable works over a computer network such as the Internet do[es] not involve any transfer of such material objects.\u201d On this view, transfers over digital networks are not distributions of material objects.<\/p>\n

While some academics may insist that this is the only way to interpret the Copyright Act, the reality is that the courts have uniformly interpreted it differently. Many courts have explicitly rejected the textual argument that there are no digital distributions, and many others have just assumed that such digital distribution rights exist. As the district court in Arista Records v. Greubel<\/em><\/a> noted in 2006, despite \u201cscholarly articles reflecting debate over the scope\u201d of the distribution right, \u201cthe courts have not hesitated to find copyright infringement by distribution in cases of file-sharing or electronic transmission of copyrighted works.\u201d The district court then cited opinions by the Supreme Court in New York Times v. Tasini<\/em><\/a>, the Seventh Circuit in In re Aimster<\/em><\/a>, and the Ninth Circuit in A&M Records v. Napster<\/em><\/a> that applied the distribution right in cyberspace without even flinching.<\/p>\n

Perhaps the most in-depth analysis of the issue comes from London-Sire v. Doe<\/em><\/a>, where District Judge Nancy Gertner held in 2008 that it \u201cmakes no difference that the distribution occurs electronically[.]\u201d Judge Gertner reasoned that \u201c[w]hat matters in the marketplace is not whether a material object \u2018changes hands,\u2019 but whether, when the transaction is completed, the distributee has a material object.\u201d Even though the \u201cdistributee\u201d has a different \u201cmaterial object\u201d\u2014the hard drive or other storage media where the file resides\u2014Judge Gertner held that a digital distribution has taken place nonetheless. She warned that \u201can overly literal definition of \u2018material object\u2019 . . . ignores the phrase\u2019s purpose in the copyright statutes.\u201d<\/p>\n

Other courts have adopted this reasoning. For example, the district court in Capitol Records v. ReDigi<\/em><\/a> cited London-Sire<\/em> approvingly: \u201c[T]he Court agrees that \u2018[a]n electronic file transfer is plainly within the sort of transaction that \u00a7 106(3) was intended to reach [and] … fit[s] within the definition of \u2018distribution\u2019 of a phonorecord.\u2019\u201d The court then held that the distribution right exists in cyberspace: \u201cAccordingly, the court concludes that . . . the sale of digital music files on ReDigi\u2019s website infringes Capitol\u2019s exclusive right of distribution.\u201d Likewise, just last year, the district court in BMG v. Cox<\/em><\/a> relied on London-Sire<\/em> in holding that, \u201c[n]ot only can electronic files be \u2018material objects,\u2019 but transferring files using a BitTorrent protocol satisfies the transactional element of distribution.\u201d<\/p>\n

The fact is that courts have not wavered in finding that the distribution right applies online. As one district court said<\/a> in 2012, \u201c[i]n the electronic context, copies may be distributed electronically.\u201d The point is so well-settled that it defies logic to claim otherwise, and it\u2019s certainly consistent with other parts of the Copyright Act. For instance, Section 506(a)(1)(B)<\/a> makes it a crime to \u201cwillfully\u201d infringe by \u201cdistribution, including by electronic means[.]\u201d And Section 115(c)(3)(A)<\/a> creates a compulsory license \u201cto distribute . . . by means of a digital transmission[.]\u201d If digital distributions didn\u2019t implicate the public distribution right, it wouldn\u2019t be a crime to distribute \u201cby electronic means,\u201d and one wouldn\u2019t need a license to distribute \u201cby means of a digital transmission.\u201d<\/p>\n

To claim that the \u201cright to distribute encompasses the distribution of physical copies of a work, not electronic transmissions,\u201d as the professors do, is simply wrong. There\u2019s certainly an argument that can be made, but it\u2019s not an accurate description of the law\u2014which is how the professors present it. Everyone knows the distribution right exists online, and it\u2019s industry practice to license digital distributions. Do you think iTunes and Amazon pay for distribution licenses because they just feel like it? It\u2019s disturbing that professors would state without any qualification that electronic transmissions don\u2019t implicate the distribution rights of copyright owners. And if they\u2019re willing to say that, it makes you wonder what else they\u2019re willing to say.<\/p>\n

\n

[1]<\/a> My colleagues and I have written extensively about the copyright concerns with the FCC\u2019s set-top box proposal. See, for example, here<\/a>, here<\/a>, here<\/a>, and here<\/a>. The FCC now claims that a revised version of its proposal addresses these concerns, but the new language has not yet been released. Despite this fact, these professors claim that the yet-to-be-released proposal \u201cdoes not interfere with any legitimate copyright interests of programmers, and that it is within the Commission\u2019s authority to implement.\u201d We\u2019ll save our analysis of the new proposal for when the text itself is made available.<\/p>\n","protected":false},"excerpt":{"rendered":"

In a letter submitted to the FCC late last week defending the Commission\u2019s deeply flawed set-top box proposal,[1] a group of professors make an incredible claim: Everyone is perfectly free to distribute copyrighted works online however they please. No license? No problem! According to these professors, many of whom teach copyright law, copyright owners have […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,29,1],"tags":[100,212,434,535,548,552,897,993,1182,1211,1345,1429],"class_list":["post-4082","post","type-post","status-publish","format-standard","hentry","category-copyright","category-internet","category-uncategorized","tag-aimster","tag-bmg-v-cox","tag-digital-distribution","tag-exclusive-rights","tag-fcc","tag-federal-communications-commission","tag-london-sire","tag-napster","tag-public-distribution","tag-redigi","tag-set-top-box","tag-tasini"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/4082","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=4082"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/4082\/revisions"}],"predecessor-version":[{"id":15845,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/4082\/revisions\/15845"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=4082"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=4082"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=4082"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}