Professors Mislead FCC on Basic Copyright Law

Cross-posted from the Center for the Protection of Intellectual Property (CPIP) blog.

In a letter submitted to the FCC late last week defending the Commission’s 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 no distribution right in cyberspace. If you think this sounds wrong, you’re right! This claim sounds ridiculous because it is ridiculous, and it’s simply amazing—and troubling—that professors would mislead the FCC in this way.

The professors argue that a copyright owner’s “right to distribute encompasses the distribution of physical copies of a work, not electronic transmissions.” In support, they cite no case law whatsoever. There’s 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 treatise puts it: “No court has held to the contrary on this issue[.]” Yet, the professors present this to the FCC as an accurate description of the law, with no equivocation whatsoever.

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), which gives copyright owners the exclusive right “to distribute copies . . . of the copyrighted work to the public,” and Section 101, which says that “copies are material objects.” At first blush, one could question how it’s possible to distribute a “material object” online. Indeed, many academics have questioned this very thing. For example, one professor wrote in 2001 that “transmitting copyrightable works over a computer network such as the Internet do[es] not involve any transfer of such material objects.” On this view, transfers over digital networks are not distributions of material objects.

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 noted in 2006, despite “scholarly articles reflecting debate over the scope” of the distribution right, “the courts have not hesitated to find copyright infringement by distribution in cases of file-sharing or electronic transmission of copyrighted works.” The district court then cited opinions by the Supreme Court in New York Times v. Tasini, the Seventh Circuit in In re Aimster, and the Ninth Circuit in A&M Records v. Napster that applied the distribution right in cyberspace without even flinching.

Perhaps the most in-depth analysis of the issue comes from London-Sire v. Doe, where District Judge Nancy Gertner held in 2008 that it “makes no difference that the distribution occurs electronically[.]” Judge Gertner reasoned that “[w]hat matters in the marketplace is not whether a material object ‘changes hands,’ but whether, when the transaction is completed, the distributee has a material object.” Even though the “distributee” has a different “material object”—the hard drive or other storage media where the file resides—Judge Gertner held that a digital distribution has taken place nonetheless. She warned that “an overly literal definition of ‘material object’ . . . ignores the phrase’s purpose in the copyright statutes.”

Other courts have adopted this reasoning. For example, the district court in Capitol Records v. ReDigi cited London-Sire approvingly: “[T]he Court agrees that ‘[a]n electronic file transfer is plainly within the sort of transaction that § 106(3) was intended to reach [and] … fit[s] within the definition of ‘distribution’ of a phonorecord.’” The court then held that the distribution right exists in cyberspace: “Accordingly, the court concludes that . . . the sale of digital music files on ReDigi’s website infringes Capitol’s exclusive right of distribution.” Likewise, just last year, the district court in BMG v. Cox relied on London-Sire in holding that, “[n]ot only can electronic files be ‘material objects,’ but transferring files using a BitTorrent protocol satisfies the transactional element of distribution.”

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

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


[1] My colleagues and I have written extensively about the copyright concerns with the FCC’s set-top box proposal. See, for example, here, here, here, and here. 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 “does not interfere with any legitimate copyright interests of programmers, and that it is within the Commission’s authority to implement.” We’ll save our analysis of the new proposal for when the text itself is made available.

6 thoughts on “Professors Mislead FCC on Basic Copyright Law

  1. You are really misrepresenting what these professors actually say in their brief.

    Granted, they probably should have used the term “material copies” instead of “physical copies.” But otherwise, they are completely accurate. A transmission alone does not implicate the distribution right; in order to implicate the distribution right, there must be a new, fixed copy of a material object (even if that material object is a digital file).

    That doesn’t mean that all transmissions are somehow immune from infringement, and the professors do not even suggest it. Even if the transmission does not implicate the distribution right, it may (and likely does) implicate the public performance right. The relevant text in the letter is in the first footnote, and it is clear that this is what the professors were talking about. The rest of the footnote is citing case law about public performances by means of electronic transmissions.

    And the FCC proposal, what we know about it, does not involve a new fixed copy of a material object. In the words of the professors: “Any reproductions of copyrighted works that the MVPD app itself creates in the course of its operation are likely either transient, fair uses, or covered by the scope of the MVPD’s carriage agreement.”

    Nothing that they said contradicts any of the cases that you cite.

    Moreover, they’re not even talking about “cyberspace” per se. The FCC’s proposal, and the focus of the professors’ letter, is mostly about receiving cable TV programming; Internet transmissions are a secondary concern.

    They never say that “copyright owners have no distribution right in cyberspace.” They never even hint that “Everyone is perfectly free to distribute copyrighted works online however they please.”

    These are outright fabrications. Frankly, I think you should be ashamed of yourself.

    1. Hi Karl. I think it’s clear that they are arguing that the distribution right does not apply to “electronic transmissions” based on their read of 106(3) and 101. Given their position that distributions cannot occur electronically, it follows that copyright owners have no distribution right in cyberspace. Thanks for reading!

      1. On the contrary, I think it’s clear that they are arguing that the distribution right does not apply to the specific “electronic transmissions” that are part of the FCC proposal, and not every electronic transmission that could possibly exist.

        Let’s actually put it in context. Here is the paragraph that the footnote is supporting:

        “Beyond this initial public performance license, no further copyright permission is required. The public performance license that MVPDs acquire encompasses delivery of programming to end-user
        display devices. The transmission of programming from an MVPD end-point to an app does not require any additional copyright license. Such a transmission is not a distribution or reproduction as those terms are defined in the Copyright Act. It is either a private performance that falls outside of the scope of the copyright holder’s exclusive rights or part of the already-licensed public performance.”

        Note the specificity: “display devices,” “such a transmission,” etc. It is the specific transmissions in the FCC proposal (whether done via cable, in “cyberspace,” or through any other electronic medium) that they say are not covered by the distribution right (and are instead covered by the performance right).

        They are absolutely correct on this point. Quoting the London-Sire case: “[I]n the sense of the Copyright Act, ‘material objects’ should not be understood as separating tangible copies from non-tangible copies. Rather, it separates a copy from the abstract original work and from a performance of the work.” The professors, just like Judge Gertner, are simply separating the copy from the performance.

        1. Thanks, Karl. Again, though, I think you’re reading into their argument more than is really there. I think it’s perfectly clear that they’re simply arguing that the distribution right does not “encompass[] . . . electronic transmissions,” full stop. My suggestion would be to reach out to the authors of the letter and ask them what they meant. No need to take my word for it!

          1. A couple of things, and then I’ll stop…

            1. You characterized their argument as “Everyone is perfectly free to distribute copyrighted works online however they please. No license? No problem!” And yet you say that *I’m* reading into their argument more than is really there?

            2. Even if they were saying what you claim they are saying, then it in no way invalidates their analysis of the legality of the FCC proposal. The debate about whether distribution *can* occur over electronic transmissions (whether cable, Internet, or whatever) has no bearing on the proposal, because distribution *does not* occur in the FCC proposal – only a public performance occurs.

            3. If *you interpreted* their statements to mean something that was clearly at odds with case law, why didn’t *you* reach out to the authors of the letter and ask them what they meant? Especially since this post was featured on the blog of the CPIP, of which you’re the Assistant Director, and which claims to be “dedicated to scholarly analysis” and “seeks to promote a healthy academic discussion.” If you’re going to write such inflammatory articles, don’t you feel a scholarly duty to make sure you’re not completely wrong?

          2. Hi, Karl. I appreciate the thoughtful response and the civil tone.

            (1) Again, their narrow read of the materiality requirement under 101 necessarily implies this. If “electronic transmissions” are not distributions under 106(3), then everyone can distribute copyrighted works online without a license. This follows from their premise—though, I understand you disagree that this is their premise.

            (2) I kept the post limited to this point of law precisely because we don’t have the revised proposal. I don’t think we can say whether it will implicate the public distribution right without actually looking at the text. I think it’s conceivable that users would be able to download some works—as opposed to merely recording them in real time—under the proposal, which would then involve the distribution right. And I’ll note too that the professors aren’t saying that there will only be performances. They’re saying that there won’t be any public distributions under the Act because the materiality requirement wouldn’t be met.

            (3) I didn’t need to reach out to them because their argument is perfectly clear. In the past, they’ve completely ignored the copyright issues with the original proposal by talking about what users do with the works once they’ve been received. The concerns have always been with how those works reach users in the first place. And now that they’re finally addressing the copyright issues, they throw out the ridiculous assertion that the distribution right doesn’t reach “electronic transmissions.” Such obfuscation has been par for the course with them on this matter. I appreciate your acknowledgement that that position is “clearly at odds with case law.” However, that hasn’t stopped many academics and parties from continuing to make that argument. It’s not at all surprising that they’re making it here. What’s surprising is that they claim to “clarify” the law in doing so.

            Thanks, again!

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