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Copyright Law Ronald W. Staudt Class 20 April 6, 2009 Slide 2 Class Overview zDistribution Right and First Sale Doctrine ySects. 106(3) and 109 zImportation Right ySect 602 and Quality King zPerformance Right yRedd Horne and Aveco Slide 3 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) 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; Slide 4 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Slide 5 Distribution Right - 106(3) zDigital technologies, p. 648 yPlayboy cases and RTC v. Netcom yMaking available & music sharing xElectra Ent Group and London-Sire Records Supp 89 MediaSentry, posing as just another peer-to-peer user, can easily verify that copyrighted material has been made available for download from a certain IP address. Arguably, though, MediaSentry's own downloads are not themselves copyright infringements because it is acting as an agent of the copyright holder, and copyright holders cannot infringe their own rights. If that argument is accepted, MediaSentry's evidence cannot alone demonstrate an infringement. London-Sire Records 542 F. Supp. 2d 153, 166 (DC Mass 2008) Slide 6 Electra Ent. V. Barker - publication and distribution zHaving accepted that the definition of "distribute" is synonymous with the definition of "publication," however, liability under Section 106(3) requires that Plaintiffs -- to be faithful to the statute -- affirmatively plead that Defendant made an offer to distribute, and that the offer to distribute was for the purpose of further distribution, public performance, or public display. Thus, because Congress did not expressly equate the act of "offering to distribute... for the purposes of further distribution" to the act of "making available," Plaintiffs' allegations -- insofar as Plaintiffs wish to hold Defendant liable for acts of infringement other than actual downloading and/or distribution -- fail to state a claim. 551 F. Supp. 2d 234, 244-5 (DC SD NY 2008)Section 106(3) Slide 7 London-Sire Records Making available & music sharing Plainly, "publication" and "distribution" are not identical. In this context, that means that the defendants cannot be liable for violating the plaintiffs' distribution right unless a "distribution" actually occurred. The Court can draw from the Complaint and the current record a reasonable inference in the plaintiffs' favor -- that where the defendant has completed all the necessary steps for a public distribution, a reasonable fact-finder may infer that the distribution actually took place. Per the plaintiffs' pleadings, each individual Doe defendant connected to the peer-to-peer, network in such a way as to allow the public to make copies of the plaintiffs' copyrighted recordingsThrough their investigator, the plaintiffs have produced evidence that the files were, in fact, available for download. They have also alleged that sound recordings are illegally copied on a large scale, supporting the inference that the defendants participated in the peer-to-peer network with the intent that other users could download from the defendants copies of the plaintiffs' copyrighted material.At least at this stage of the proceedings, that is enough. The plaintiffs have pled an actual distribution and provided some concrete evidence to support their allegation. 542 F. Supp. 2d 153, 169 (DC Mass 2008) Slide 8 Publication 17 U.S.C. 101 zPublication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. Slide 9 Distribution Right - 106(3) zFirst Sale Doctrine yFawcett v. Elliot xDouble Comics zRecord and Software Rental yAudio Books? 109(b)(1)(A) and Brilliance Audio Slide 10 602. Infringing importation of copies or phonorecords (a) Importation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords under section 106, actionable under section 501. Slide 11 Inportation Right zQuality King Distributors v. LAnza Research yIs the first sale doctrine applicable to imported copies? y602(a), importation right y106(3), distribution right y109(a) first sale doctrine yWhat about 501? yIf 602(a) is independent of 106, what about fair use? Slide 12 501. Infringement of copyright (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. Slide 13 106. Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of a copyright under this title has the exclusive rights to do and to authorize any of the following: *** (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; *** (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. Slide 14 Performance Rights zIs it a performance? yAllen v. AGLOA zIs it public? yRedd Horne yAveco zIs it exempt? zQuestions on 669 Slide 15 To "perform" a work means zto recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. Slide 16 To perform or display a work "publicly" means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. Slide 17 Sect. 106(4), (5), & (6) zPublic Performance and Display yColumbia Pictures v. Aveco xPublic? Compare Redd Horne xFirst sale doctrine? xColumbia Pictures v PREI (hotel rooms and vcrs) xOn Command Video v Columbia (hotel rooms and transmissions) Slide 18 Sect 106(1) Reproduction Right Sect 106(4) Performance Right Who is copying? 20 th Century v. Cablevision Supp. p 67 How does RS-DVR work? Where is the copy? Arroyo Server? Where is the server? Is RS-DVR the same as a VCR or local DVR? Same case asks-who is performing? Supp p. 98 Reversed: Cartoon Network v. 20 th Century Fox, 536 F. 2d 121 (2008) Slide 19 Performing Rights Societies yOcasek v. Hegglund xDouglas Wyoming, depositionDouglas Wyoming Slide 20