Ninja Tune Puts This Warning Sticker On All New Releases… — (Actually, just promo pre-releases): “You are not ‘striking a blow against outdated copyright laws’ or ‘liberating content from the corporations’, nor are you ‘promoting our records for us.’ You are making it much harder for the musicians on our label to make anything like a living wage for creating the music which you think is good enough to share.”

Pro photographers remind lucky amateurs: Viral pictures have value — “The age of the citizen photographer is upon us. And while anybody with a phone or camera can take a picture that goes viral, that doesn’t necessarily mean they will be fairly compensated for it. To help level the playing field, some media-savvy professional photographers are taking matters into their own hands, reaching out to amateurs who were in the right place at the right time and letting them know that their viral pictures have value.”

Keeping Fair Use “Fair” — A timely reminder given the House Judiciary Committee hearing on the scope of fair use this week. “The concept of ‘fair use’ is sometimes misunderstood to imply ‘free use’ in any situation in which the result is thought to be socially beneficial in some general sense; which may sound appealing to some but is ultimately damaging to consumers and our economy.”

And a straw child shall lead them: Fan Fiction as an Example of Web 2.0 Double Rip Off — One of the witnesses at Tuesday’s fair use hearing, Naomi Novik, spoke of her experiences participating in online fan fiction communities. A reaction: “It has never been the case that anyone even thought about trying to stop children from telling stories, making up plot lines, and generally getting some costumes and putting on a play in the barn. But Google wasn’t selling advertising for an afternoon of children’s play, either. And why should Google’s advertising team get to hide behind Captain Picard or the Lone Ranger?”

It’s history, not a viral feed — @HistoryinPics is the type of enterprise copyright skeptics love: a highly popular Twitter account that solely posts historical photos, without the original photographer’s permission or even attribution. But as Sarah Werner, those drawbacks are only symptoms of deeper issues. “[H]istory is not a toy. It’s not a private amusement. And those of us who engage with the past know how important it is and how enjoyable it can be to learn about it and from it. These accounts piss me off because they undermine an enterprise I value.  Historical research—indeed, humanistic inquiry as a whole—is being undermined by the constant plugging of economic value as a measure of worth, the public defunding of higher education, and the rampant devaluing of faculty teaching.”

CAA Publishes One-Sided Fair Use Report — Says Sergio Muñoz Sarmiento, “There are a lot of problems with the College Art Association… but what’s more pernicious is how this nonprofit arts organization continues to champion the poverty and ignorance of artists, all while putting the blame on this thing called copyright law. “

In the whole history of industry, no industry has ever been put out of business because it recognized the rights of authors.1

What the heck is “net neutrality” anyway — Net neutrality is a bit out of my wheelhouse, but with the recent DC court decision striking down net neutrality rules, the issue has been discussed seemingly everywhere. Richard Bennett provides an informative primer on the topic.

Norms and Values in Digital Media: Rethinking Intellectual Property in the Digital Age — The World Economic Forum released this week the result of deep discussions on the “shared goals developed by leaders in industry, government, civil society as well as individual creators.” Among the results are this set of principles: “Foster and reward creativity”, “Build an ecosystem for innovation”, “Expand access to content”, “Inform users about ownership rights”, “Give creators and rights owners control and choice”, “Enable people to be creators”, and “Strengthen global cooperation.” Not bad.

The 2 Teenagers Who Run the Wildly Popular Twitter Feed @HistoryInPics — “The audiences that Di Petta and Cameron have built are created with the work of photographers who they don’t pay or even credit. They don’t provide sources for the photographs or the captions that accompany them. Sometimes they get stuff wrong and/or post copyrighted photographs. They are playing by rules that “old media” and most new media do not. To one way of thinking, they are cheating at the media game, and that’s why they’re winning. (Which they are.)”

The purloined picture: Visual artists confront piracy on the Web — For a few months last fall, Hannah Price was famous. More precisely, she was Internet famous. In October, the website the Morning News posted a feature on “City of Brotherly Love,” a series of photographs Price, 27, had taken of men who catcalled her after she moved to Philadelphia in 2009. Only the site displayed Price’s ambiguously titled works under a more pointed, but click-catching, headline: “My Harassers.” Online news outlets from Slate to Jezebel to Buzzfeed took the bait. More than 15,000 articles and blog posts followed. And what came out of all that attention for Price? Gallery invitations? Photo sales? Commissions? “Nothing, really,” she said. “It kind of stayed on the Internet.”

Google patents ad-powered taxi service that would offer free rides to shoppers — “Advertisers would pay for your transportation in the hope that you buy something.” Turns out the car mostly drives you to fake storefronts owned by spammers.


  1. Statement of Sydney M. Kaye, BMI, Hearings Before the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary United States Senate, Pursuant to S. Res. 201 on S. 1006, pg. 151 (1966). []

The Supreme Court a few weeks ago agreed to review the Second Circuit’s decision in ABC v. Aereo, setting the stage for a major copyright decision that could come as early as this summer.

The legal issues—and the policy issues—can be quite complex.  The case law thus far has not been terribly enlightening. The legal commentary on the issues has tended to add more layers of complexity rather than getting us closer to rules that provide guidance and clarity to courts and the public.

So it makes sense to look at the statute one step at a time. Today, I want to focus solely on what the Copyright Act means by the phrase “to the public.”

The Copyright Act provides that one of a copyright owner’s exclusive rights is the right “to perform the copyrighted work publicly.”1 The Act explains, “To ‘perform’ a work means to 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.” One can perform a work either privately or publicly, and only the latter is within a copyright owner’s exclusive control. the Act goes on to say:

To perform … a work “publicly” means—

(1) to perform … 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 transmit2 or otherwise communicate a performance … 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 … receive it in the same place or in separate places and at the same time or at different times.3

It is the last action in clause (2)—transmission of a work to the public—that is at issue in Aereo.

But what does “to the public” mean? The Copyright Act does not define it. And, perhaps surprisingly, Cablevision (which the Second Circuit relied on to reach its conclusion in Aereo) never answers this—it even admits that it reaches its conclusion “without analyzing the contours of that phrase in great detail.”4

So we have some work to do. In order to analyze the contours of the phrase, I want to first look at the history and purpose of the public performance right, and then the statutory text itself in order to provide greater clarity to “to the public.”

History and purpose of public performance right

Goal of copyright law

One of the many important ends of copyright law is to encourage the creation and release of expressive works to the public. As the Supreme Court has said

Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Evidence from the founding, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.”5

It does this by securing to authors the exclusive right to engage in acts that multiply the audience of works. Initially, this meant the multiplication of printed copies. For example, the first US copyright law, the 1790 Copyright Act, secured to authors the “sole right and liberty of printing, reprinting, publishing and vending” copies of works.6 Today, US copyright law gives authors the exclusive right not only to make copies, but also to distribute to the public and perform or display works publicly.

These rights are often commercially valuable; by vesting them in the author, the possibility exists to recoup investments in creation and publication. We know bringing works to new audiences is commercially valuable by sheer fact that companies like Aereo expend capital doing just that.

An interpretation of the public performance provisions that is consistent with this principle is ideal. Acts that expose works to new audiences—that multiply the audience of works—should preferably be within the ambit of copyright.

History of public performance right

As noted above, copyright originally protected only the right to reproduction and distribution. An exclusive right to perform dramatic compositions to the public for profit was added to copyright law in 1856.7 The right to public performance was extended to musical compositions in 1897.8 In 1909 Congress passed a major revision to the Copyright Act. The revision provided that copyright owners have the exclusive right “To perform or represent the copyrighted work publicly if it be a drama” and “To perform the copyrighted work publicly for profit if it be a musical composition and for the purpose of public performance for profit.”

The decades following the 1909 Act saw tremendous social and technological changes, and Congress soon felt the need to update the copyright law once again. A general revision process began in earnest in 1955, when Congress appropriated funds for the Copyright Office to lay the groundwork for revision through a comprehensive program of research and study, and the resulting reports from the Register of Copyrights document well the purpose of the public performance provisions and the issues they attempt to address.

Most cases dealing with the public performance right under the 1909 Copyright Act, said the Copyright Office in a 1958 study, revolved around the “for profit” limitation; very few involved the question of what constitutes a “public” performance.9 At the same time, concerns about “semi-public” performances, in places such as “social clubs, lodges, camps, schools, and factories” were raised during revision efforts.10

Ultimately, the 1976 Copyright Act did away with the “for profit” limitation, instead providing a broad public performance right with specific exceptions for certain nonprofit and noncommercial uses. As the Register of Copyrights pointed out in a 1965 Supplemental Report:

[I]t is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.

A 1975 report on the copyright law revision from the Senate Judiciary Committee also noted:

The line between commercial and “nonprofit” organizations is increasingly difficult to draw. Many “nonprofit” organiza­tions are highly subsidized and capable of paying royalties and the widespread public exploitation of copyrighted works by’ educational broadcasters and other noncommercial organizations is likely to grow. In addition to these trends, it is worth noting that performances and displays are continuing to supplant markets for printed copies and that in the future a broad “not for profit” exemption could not only hurt authors but could dry up their incentive to write.

The new Copyright Act also had the goal of addressing the issue of public performance for broadcasting. This was a very dynamic issue; as the 1965 Supplemental Report of the Register pointed out, “Anyone looking for an example of how fast things move in the field of author’s rights can find no more striking illustration than the problem of community antennas and their liability under the copyright law. This question, which was not even referred to in the 1961 Report, now promises to be one of the most hotly debated issues in the entire revision program.”

Earlier in the Report, the effect of rapid technological change on author’s rights is discussed. Though the context of the discussion there regards the exhibition of static images or text, it is just as relevant to the performance of audio and video.

Since the Report was issued in 1961 we have become increasingly aware of the enormous potential importance of showing, rather than distributing, copies as a means of disseminating an author’s work. In addition to improved projection equipment, the use of closed-and open-circuit television for presenting images of graphic and textual material to large audiences of spectators could, in the near future, have drastic effects upon copyright owners’ rights. Equally if not more significant for the future are the implications of information storage and retrieval devices; when linked together by communications satellites or other means, these could eventually provide libraries and individuals throughout the world with access to a single copy of a work by transmission of electronic images. It is of inconceivable that, in certain areas at least, ”exhibition” may take over from ”reproduction” of ”copies” as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition should be expressly recognized in the statute.

The Report says that what eventually would become the 1976 Copyright Act should provide a broad public performance right that would include any and all means of transmission, including “direct amplification (as over a loud speaker system); transmission over wires or other connections; wireless transmission by the originating transmitter and by any other transmitter who picks up his signals and passes them on; and further transmission, over wires, of a wireless transmission.” In addition, the Register foresaw the potential of statutory language being used to erode author’s rights:

The 1964 bill contained language exempting transmissions by someone acting, ”as a common carrier,” the thought being that a corporation merely leasing wires or equipment for the intermediate transmission of signals to other transmitters, rather than to the public, should not be subjected to liability to the copyright owner. It was pointed out that the concept of ”common carrier” might be extended unjustifiably to some commercial transmitters to the public, and we have therefore dropped this exception as ill-advised.

So the Register called for a broad, “future proof” approach, one that would continue to provide meaningful rights to authors even as technological advances changed the way works reach their audiences. Said the report:

Obviously no one can foresee accurately and in detail the evolving patterns in the ways author’s works will reach the public 10, 20, or 50 years from now. Lacking that kind of foresight, the bill should, we believe, adopt a general approach aimed at providing compensation to the author for future as well as present uses of his work that materially affect the value of his copyright. … A real danger to be guarded against is that of confining the scope of an author’s rights on the basis of the present technology so that, as the years go by, his copyright loses much of its value because of unforeseen technical advances. For these reasons, we believe that the author’s rights should be stated in the statute in broad terms, and that the specific limitations on them should not go any further than is shown to be necessary in the public interest.

What is “to the public”

Given that background, we can take a closer look at the statutory language and resolve any ambiguities in light of the intent and purpose behind the provisions. I’ll state upfront what I believe the definition of “to the public” entails:

Any transmission from one person to another person who is not a family member or a close social acquaintance is a public performance.

How do we get here?

Though the Copyright Act defines “publicly”, it does not define “to the public”—or even “public”. But we can deduce the definition of “to the public” from the definition of “publicly,” specifically, the Transmit Clause. The Transmit Clause states that performing a work “publicly” means “to transmit or otherwise communicate a performance … 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 … receive it in the same place or in separate places and at the same time or at different times.”

If we replace the phrase “place specified by clause (1)” with the actual language of clause (1), we see that performing a work “publicly” means “to transmit or otherwise communicate a performance … of the work to a [place open to the public[, to] any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance … receive it in the same place or in separate places and at the same time or at different times.”

These three are mutually exclusive. That is, we can read them this way:

Communication of a performance to:

  1. A place open to the public
  2. A place not open to the public but where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered
  3. The public, not including a substantial number of persons outside of a normal circle of a family and its social acquaintances, and at a place not open to the public

It turns out that interpretation of each of these are based on factors that are also mutually exclusive. Courts determine the first, whether a specific place is open to the public, by looking at the nature of the place.11 The second is determined not by the nature of the place, but by the nature and quantity of the audience. How would the third be determined? Since these are exclusive, we are not looking at the nature of the place or the nature and quantity of the audience. What is left to look at?

I posit that a court should look at the relationship between performer/transmitter and audience/recipient. First, the definition contemplates, through the “same place or in separate places and at the same time or at different times”, that one individual is all that is required for a public performance. But we presume, at the very minimum, that an individual transmitting a performance to only herself is performing privately. A consideration of the relationship between transmitter and recipient will account for this in all circumstances. Second, the second transmit phrase expressly states that a performance at a private place where the normal circle of a family and its social acquaintances (and perhaps an insubstantial number of persons outside that) are gathered is a private performance. It should follow that “the public” in phrase 3 also exempts family and social acquaintances—but we can only determine this exemption if we’re looking at the relationship between transmitter and recipient. (Almost) everyone is a member of some family. Finally, this reading is most consonant with the ordinary meaning of the words, the language of the statute and the purpose of the public performance right. There is no need here to import nonstatutory requirements like “unique copies,” as the Second Circuit did in Cablevision and Aereo.

I would add that the legislative history provides an additional point of support against reading in a “unique copy” requirement. The Transmit Clause speaks of a performance of a work, not a particular copy of a work. The U.S. Copyright Office noted in the 1965 Supplemental Report, “A consistent effort has been made in this section and throughout the bill to distinguish between the ‘original work’ which is the product of the author’s creative intellect and which is the real subject of copyright protection and ‘copies’ or ‘phonorecords’ (which are the material objects embodying the work). Failure to draw this distinction under the present law has resulted in a great deal of unnecessary confusion, and has led to results in individual cases that were unpredictable or unfair.”12 This is plain evidence that if Congress intended courts to look at the audience of a performance from a copy rather than a work, it would have said so in the statute.

The Public/Private Distinction Elsewhere

This reading of “to the public” is consistent with case law on other copyright doctrines.

The first is found by looking at the distinction between “limited” and “general” publication. Prior to the 1976 Copyright Act, publication of a work rather than creation served as the genesis of federal copyright protection.13 As with the public performance right, neither “publish” nor “publication” was ever defined by statute. But in its most general sense, “a work is published when it is communicated to the public.” (Emphasis added.)14

Prior to publication, authors enjoyed absolute protection under common law copyright. Publication ended common law protection and made a work eligible for protection under federal copyright statutes. However, before the 1976 Copyright Act, federal copyright protection was also premised on formalities such as notice and registration. This led on occasion to harsh results for authors who inadvertently lost copyright protection by disseminating works without complying with formalities. Because of this, courts tended to interpret “publication” narrowly, and a distinction between “limited” publication and “general” publication emerged, with only the second acting as a publication for purposes of copyright law.15 Roughly speaking, then, the distinction between a limited publication and a general publication is a distinction between a private dissemination and a dissemination to the public.

This distinction was, as many legal distinctions tend to be, somewhat fuzzy.16 But, for our purposes, one general proposition consistently arises from case law: the distinction between the two is one of kind, not degree. That is, the number of copies that have been disseminated is not relevant, it is the nature of the dissemination that matters. And that means that there can be cases where the dissemination of a single copy of a work can be a general publication.17

“In cases where general publication has been found, the creator had made his work available in a manner that suggested that any interested person could have a copy.”18 Essentially, an offer of “come one, come all” had been made—even if no one shows up. On the other hand, “Mere limited publication has been found where the range and purpose of distribution did not suggest that the general public was free to obtain and use the work”—even if the work was circulated widely.19 That is, the audience has been limited ex ante.

Distribution to the Public

The lines drawn above carry over into other copyright doctrines.

Following the general copyright revision in 1976, publication ceased to be the dividing line between common law and statutory protection (although when a work is published remains relevant for a number of other copyright doctrines).20 The 1976 Copyright Act brought both unpublished and published works under the ambit of federal statutory protection.

Much of the language of the Act departed from prior copyright statutes. Thus, for the first time, the Act included, among a copyright owner’s exclusive rights, an exclusive right “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.”21 The House Report on the 1976 Copyright Act indicates that distribution is largely synonymous with publication: “Clause (3) of section 106 establishes the exclusive right of publication.” Section 101 of the Act also defines “Publication” as “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,” lending support to the interchangeability of the two terms. So here we have a bridge between the pre-1976 concept of publication and the 1976 Copyright Act right of distribution, allowing the doctrines of the former to inform the latter.

The Third Circuit made this observation in Ford Motor Co. v. Summit Motor Products:

The term “public” is not defined in the Copyright Act. Thus, we need to look elsewhere for a definition. Our search commences with the observation that the right protected by section 106(3) is generally referred to as that of publication. Indeed, the statutory definition of “publication” is “the distribution of copies … of a work to the public by sale or other transfer of ownership,” a definition which tracks the language of section 106(3). “Publication” and the exclusive right protected by section 106(3), then, are for all practical purposes, synonymous. Therefore, any clarification of what is meant by “publication” would also clarify what is meant by section 106(3), and in particular, the term “public.”22

Armed with this rule, the Circuit Court turned to prior decisions to see what was meant by “publication” and found that

Courts have held that when deciding if a common law “publication” occurred, the “number of persons receiving copies is not determinative; a general publication may be found when only one copy of the work reaches a member of the general public….” Hence, because “publication” and the right protected by section 106(3) are the same, and because a “publication” can occur when only one member of the public receives a copyrighted work, it follows that a violation of section 106(3) can also occur when illicit copies of a copyrighted work are only distributed to one person.

Cablevision explicitly rejected applying the reasoning in Ford to public performance, saying

Commentators have criticized the Ford court for divesting the phrase “to the public” of “all meaning whatsoever,” and the decision does appear to have that result. Whether this result was justified in the context of the distribution right is not for us to decide in this case. We merely note that we find no compelling reason, in the context of the transmit clause and the public performance right, to interpret the phrase “to the public” out of existence.

With all due respect, the Second Circuit rushes through its dismissal of Ford to get to the result it wants. For starters, “Commentators” is perhaps overstating things, as the court cites to only one source: Nimmer on Copyright. In addition, the court, in its haste, misunderstands what Nimmer is saying.

The section cited is on “publication and public distribution,” and in it, Nimmer notes that the exclusive right to distribution is limited to distributions made “to the public”—so, like the performance right, the Copyright Act contemplates the existence of non-infringing “private” distributions. Nimmer refers to the legislative history that demonstrates a rough correspondence between the pre-1976 publication right and the 1976 distribution right; he concludes that the distinction between a “general” publication and a “limited” publication should survive as a distinction between an infringing distribution to the public and a non-infringing “private” distribution if the two were to be synonymous.

But, says Nimmer, one could argue to the contrary that the distribution right not only incorporated the pre-1976 right to publish but also the pre-1976 right “to vend” a work—and it is apparently the case that the vending right made no distinction between limited and general dissemination. Both private sales and sales to the public at large fell within the scope of the vending right. Nimmer says, “The problem with that construction is that it limits the statutory language concerning distribution ‘to the public’ so that the phrase loses almost all meaning.” Nimmer goes on to say that Ford takes this construction one step further by holding that a gift rather than a sale to a designated individual constitutes a distribution. That is, Nimmer attacked Ford first for its holding that distribution encompassed the right not only to publish but to vend and second for its conclusion that a transaction that lacked “pecuniary remuneration” implicates the right to vend. He did not attack the case for the proposition that a distribution can be to the public when only one copy is disseminated, consistent with well-settled jurisprudence regarding limited and general publication.23 In fact, Nimmer’s treatise reinforces the parallels between publication and distribution, and thus the idea that it is the nature of the act rather than the quantity involved that is important. Nimmer begins this section by explaining,

Note that it is not any distribution of copies or phonorecords that falls within the right, but only such distributions as are made “to the public.” In essence, it is a right to control the work’s publication. The term “distribution” rather than “publication” was used merely “for the sake of clarity.” Accordingly, a limited publication, i.e., a distribution made to a limited group for a limited purpose and not made to the public at large, should not infringe this right.

The Copyright Act speaks of distributions “to the public”, which is roughly synonymous with general publication. The Copyright Act also speaks of transmitting a performance “to the public.” Interpretation of this language should thus be informed by case law on publication. And that suggests we are not looking at quantity of performances—and we’re certainly not looking at whether the origin of the performance stems from a “unique copy.” Instead, we are looking at the nature of the performance. Is it, as in general publications, made available to the public at large? Or is it ex ante limited, available, at a minimum, only to an individual, her family, and her close social acquaintances?

And to answer that, we need to ask, what is the relationship between performer and audience?

This is how a California court in 1991 resolved a copyright dispute involving the Transmit Clause:

Hotel guests watching a video movie in their room through On Command’s system are not watching it in a “public place” but they are nonetheless members of “the public.” This is because the relationship between the transmitter of the performance, On Command, and the audience, hotel guests, is a commercial, “public” one regardless of where the viewing takes place.24

This is, I’d note, also the conclusion reached by Judge Chin in his dissent in Aereo. “Giving the undefined term ‘the public’ its ordinary meaning, a transmission to anyone other than oneself or an intimate relation is a communication to a ‘member[] of the public,’ because it is not in any sense ‘private.’”25

Next steps

Defining “to the public” is only the first step in determining if copyright infringement has occurred. What remains are perhaps the more difficult questions: what is a performance? And who is a performer? This last question is especially germane in the cloud computing context: when is an online service performing a work, and when is it acting merely as a “device or process” for a user to perform a work?


  1. 17 U.S.C. § 106(4). []
  2. The Act later adds, “To ‘transmit’ a performance … is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent.” []
  3. 17 U.S.C. § 101. []
  4. Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F. 3d 121, 138 (2nd Cir. 2008). The court merely said that the relevant audience of an individual transmission is limited to who is capable of receiving that individual transmission and then presumed that that would always be an individual subscriber. Maybe that presumption is fine at the summary judgment stage, but clearly it could be the case that a subscriber might be an establishment open to the public, such as a bar or restaurant, which would make Cablevision’s transmission a public performance. []
  5. Golan v. Holder, 132 S. Ct. 873, 888-889 (2012). []
  6. Copyright Act of 1790. []
  7. Act of August 18, 1856, 34th Cong., 1st Sess., 11 Stat. 138. Oren Bracha notes bills to this effect had been introduced as early as 1841 in the U.S., and the UK added public performance of dramatic works in 1833. See Oren Bracha, Commentary on the U.S. Copyright Act Amendment 1856, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer (2008), []
  8. Act of January 6, 1897, 44th Cong., 2d Sess., 29 Stat. 481. []
  9. Borge Varmer, Copyright Office Revision Study 16: Limitations on Performing Rights, U.S. Copyright Office (1958). []
  10. Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law at 29 (1961). []
  11. Columbia Pictures Industries, Inc. v. Professional Real Estate Inv,, Inc., 866 F. 2d 278,281 (9th Cir. 1989); Columbia Pictures Industries, Inc. v. Aveco, Inc., 800 F.2d 59, 63 (3d Cir.1986). []
  12. The House Report on the 1976 Copyright Act echoes this point, stating, ” The definitions of [‘copy’ and ‘phonorecord’] in section 101, together with their usage in section 102 and throughout the bill, reflect a fundamental distinction between the ‘original work’ which is the product of ‘authorship’ and the multitude of material objects in which it can be embodied. Thus, in the sense of the bill, a ‘book’ is not a work of authorship, but is a particular kind of ‘copy.’ Instead, the author may write a ‘literary work,’ which in turn can be embodied in a wide range of ‘copies’ and ‘phonorecords,’ including books, periodicals, computer punch cards, microfilm, taped recordings, and so forth. It is possible to have an ‘original work of authorship’ without having a ‘copy’ or ‘phonorecord’ embodying it, and it is also possible to have a ‘copy’ or ‘phonorecord’ embodying something that does not qualify as an ‘original work of authorship.’” []
  13. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 552 (1985). []
  14. Drone, The Law of Property in Intellectual Productions (1879). []
  15. See, e.g., American Tobacco Company v. Werckmeister, 207 US 284 (1907); Burke v. National Broadcasting Co., Inc., 598 F. 2d 688, 691-92 (1st Cir. 1979). []
  16. Deborah R. Gerhardt, Copyright Publication: An Empirical Study, 87 Notre Dame Law Review 135, 138 (2011). []
  17. Brown v. Tabb, 714 F. 2d 1088, 1091-92 (11th Cir. 1983); Burke v. National Broadcasting Co., Inc. 598 F.2d 688, 691-92. (1st. Cir. 1979); Bobbs-Merrill Co. v. Strauss, 147 F. 15, 19 (2d Cir. 1906), aff’d, 210 U.S. 339 (1908). []
  18. Burke at 692, citing Nimmer on Copyright § 4.04, at 4-20-21. []
  19. Id. []
  20. Gerhardt at 145-48. []
  21. 17 U.S.C. § 106(3). []
  22. 930 F.2d 277, 299 (3rd Cir. 1991). []
  23. I would add that Nimmer’s criticism of Ford is appropriate, but for reasons other than those offered by Nimmer. It is not the fact that the transaction involved took the form of a gift rather than a sale. Ford explains, “That the bags were a gift is of no import. The term ‘other transfer of ownership’ is broad enough to encompass gifts. In fact, the House Report on the 1976 Amendment to the Copyright Act states during the course of a discussion on section 106(3) that the copyright owner has the right to control public distribution, whether by sale, gift, loan, or some rental or lease arrangement.'” Rather, the fatal flaw of Ford is that it skips over the distinction between a limited and general publication, taking the proposition that “a publication can occur when only one member of the public receives a copyrighted work” (emphasis added) to mean that all transfers involving one individual receiving a copyrighted work constitute a general publication. This is a logical fallacy. []
  24. On Command Video Corp. v. Columbia Pictures, 777 F. Supp. 787, 790 (ND Cali, 1991). []
  25. WNET, Thirteen v. Aereo, Inc., 712 F.3d 676, 698 (2nd Cir. 2013) (J. Chin, dissent). []

Cross-posted on the Law Theories blog.

Now that the Supreme Court has agreed to hear the Aereo appeal, I want to offer a simple explanation of the central legal issue before the Court. Much has been written about Aereo, but surprisingly little of it discusses the actual question the Court will decide. There is no doubt that Aereo is performing works as it retransmits them to its customers—that’s the very service that Aereo provides. The fundamental legal point the Court will determine is whether those performances are public or private. If public, they’re infringing, and if private, they’re not. Don’t let the argle-bargle being tossed out by bloggers and commentators distract you from this simple point.

Lots of arguments being offered by copyright critics are simply wrong. This case isn’t about the future of cloud computing companies—those services are protected by the DMCA. It isn’t about the length of any cord—no matter how long the cord is, the legal question is the same. Nor is it about Aereo simply doing something that a customer could do himself—the fact is that the customer isn’t doing it himself since Aereo is helping him do it. And it certainly isn’t about thwarting the progress of innovation—Aereo’s design is rather ridiculous, and it’s only “innovative” in that it retransmits broadcasts without paying any fees.

The Copyright Act gives copyright owners the exclusive right “to perform the copyrighted work publicly.”1 A work can be performed publicly in one of three ways. The first is by performing the work at a place open to the public or at a place where people outside of one’s family and friends congregate.2 An example of this would be putting on a play at a theater where tickets are available to the general public. The second is by transmitting a performance of the work to a place open to the public or to a place where people outside of one’s family and friends congregate.3 An example of this would be an opera house that transmits a performance to a movie theater where tickets are available to the general public.

The final way a work can be performed publicly is by transmitting a performance of the work to the public, by whatever means, whether the transmission of the performance can be received in one place or in many places and at one time or at many times. An example of this would be a broadcaster that transmits a television show to the general public over the airwaves. This last way of performing a work publicly is the one that’s at issue here with Aereo, and the operable statutory text comes from the last section of what is called the “Transmit Clause” in Section 101 of the Copyright Act. The outcome of the Aereo appeal will turn on how the Supreme Court parses this section of the Transmit Clause, which provides:

To perform . . . a work “publicly” means . . . to transmit or otherwise communicate a performance . . . of the work . . . to the public, by means of any device or process, whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.4

Note how this opens up four possibilities, all of which are public performances of a work. The transmission of a performance of a work to the public is a public performance if it is capable of being received: (1) in the same place and at the same time, (2) in separate places and at the same time, (3) in the same place and at different times, and (4) in separate places and at different times. These various possibilities are very important here with Aereo because they show that the same public performance of a work can occur via multiple asynchronous transmissions to the public. An example of this would be a work streamed from YouTube—a distinct transmission occurs whenever a member of the general public initiates playback, and despite the asynchronous transmissions, YouTube is publicly performing the work.

The Transmit Clause tells us that several distinct transmissions of a performance to the public, capable of being received in separate places and at different times, can be aggregated together as constituting one single public performance. The tricky part is figuring out when to aggregate multiple transmissions of a performance. And this gets us to the crux of the arguments in the Aereo appeal. The petitioners argue that Aereo’s distinct transmissions to its customers should be aggregated together as constituting part of the same performance, and this would mean the performance is public. Aereo, on the other hand, argues that its distinct transmissions to its customers should not be aggregated, and this would mean that there are several performances which are all private.

The reason Aereo argues that its distinct transmissions of a performance to its customers should not be aggregated is because they are made from unique copies of the underlying work. If YouTube uses only one source copy of a work to make multiple transmissions of a performance to the public, the case law tells us that those distinct transmissions should be aggregated together as constituting part of the same public performance. But Aereo argues that when each distinct transmission of a performance arises from a unique copy, this one-to-one relationship between the source copy and the customer means that multiple transmissions should not be aggregated. Whether there is any legal difference between using one source copy or multiple source copies for these transmissions of a performance forms the key question to be decided by the Supreme Court.

The notion that the private-public performance divide turns on whether the source of the transmissions comes from one copy or from multiple copies can be traced back to the influential Nimmer on Copyright treatise. In the famous Cablevision case,5 the Second Circuit adopted Nimmer’s view that a one-to-one relationship between the source copy and the customer means that multiple transmissions of a performance to the public should not be aggregated, thus making them separate private performances. According to the Cablevision court, when a unique copy is used to transmit a performance of a work to a customer, the only transmission that counts is that particular transmission—other transmissions made to other customers from other copies of the work are irrelevant.

But, as the petitioners in the Aereo appeal point out, this one source copy theory has no textual basis in the Transmit Clause. The Transmit Clause defines what it means to perform a work publicly, and the fact that the same public performance of a work can be received by the public in separate places and at different times tells us that multiple transmissions of a performance can constitute the same public performance. The Transmit Clause says nothing about the number of source copies used to make these multiple transmissions—the words “copy” or “copies” do not appear in the Transmit Clause. What matters is whether the public is capable of receiving the same performance of a work; the number of source copies used to transmit this performance is irrelevant.

The fault with the Second Circuit’s reasoning in Cablevision, and its subsequent application in Aereo,6 is in how it misinterprets the word “performance” in the following section of the Transmit Clause: “whether the members of the public capable of receiving the performance . . . receive it in the same place or in separate places and at the same time or at different times.” The Second Circuit replaced the word “performance” with the word “transmission,” and under this construction, the focus is on the audience of a particular transmission. But while a transmission of a performance is itself a performance, the words “transmission” and “performance” are not synonymous and interchangeable.

Thus, under the Second Circuit’s reading of the Transmit Clause, what matters is the potential audience of each distinct transmission. But the Transmit Clause tells us that the proper focus is on the audience of a performance, not the audience of any particular transmission of a performance. The problem with focusing on who is capable of receiving a particular transmission of a performance is that it reads the “different times” language out of the Transmit Clause. The Second Circuit realized as much, and that’s why it read into the Transmit Clause a distinction between one source copy and multiple source copies.7

Given the fact that the Transmit Clause makes no reference to the number of source copies used to generate multiple transmissions of a performance, and given the fact that the Transmit Clause by its very terms says to focus on who is capable of receiving a performance of a work—and not any particular transmission of a performance of a work—I think the Supreme Court should reverse the Second Circuit’s misapplication of the Transmit Clause in Aereo—and, by extension, in Cablevision. What matters is the fact that Aereo’s customers are capable of receiving the same performance of a work, despite the fact that this performance is comprised of distinct transmissions made from distinct copies.

Follow me on Twitter: @devlinhartline


  1. 17 U.S.C.A. § 106(4) (West 2014). []
  2. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to perform . . . 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.”). []
  3. See 17 U.S.C.A. § 101 (West 2014) (“To perform . . . a work ‘publicly’ means . . . to transmit or otherwise communicate a performance . . . of the work to a place specified by clause (1),” i.e. “a place open to the public or . . . any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”). []
  4. 17 U.S.C.A. § 101 (West 2014). []
  5. See Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008). []
  6. See WNET, Thirteen v. Aereo, Inc., 712 F.3d 676 (2d Cir. 2013), petition for rehearing en banc denied, WNET, Thirteen v. Aereo, Inc., 722 F.3d 500 (2d Cir. 2013). []
  7. See Aereo, 712 F.3d at 688 n.11 (“The Cablevision court’s focus on the potential audience of each particular transmission would essentially read out the ‘different times’ language, since individuals will not typically receive the same transmission at different times. But Nimmer’s solution—aggregating private transmissions when those transmissions are generated from the same copy—provides a way to reconcile the ‘different times’ language of the Clause.”). []

The Jenna Marbles Paradox: Why are YouTube Videos so Terrible? — “When content is 100 percent advertising supported and there is no paid subscription component, the quality of the content never rises above mediocre. The content may be cute, it may be controversial, it may generate lots of clicks but it will rarely, if ever, be good… In other words, Generation C and the rest of the watching public are being shortchanged because their entertainers are motivated by bad incentives.”

How Technology Killed the Future — Media theorist Douglas Rushkoff discusses “present shock,” where the exponential amplification of the now by digital technology has drowned out context and progress. “Terror and rage replace our ideological goals; we end up reacting only to the latest crisis. And, because of what we can find (and what we can say) on the Internet, we react with a false confidence in our command of the facts. Just because we can all blog in the same size font doesn’t mean all of our opinions are equally valid or informed.”

Chaos and Growing Expense… all for a $13 Refund — After the school cancelled its relationship with educational licensor Access Canada, students at the University of Toronto got access to a lot less materials, with far more headaches, and Canadian authors and publishers lose the ability to be compensated for their work. But, according to the U of T’s student newspaper, at least students save $13 a year.

Design Pirate Cody Foster Threatens Whistleblower — Talk about pushing your luck. The admin of a Flickr account who posts catalog photos of Cody Foster products alongside pictures of the original designs that Cody Foster allegedly copied, without permission, received a cease and desist from Cody Foster for posting the catalog photos without permission.

The Siren Song of Efficiency in Music Licensing — Bartlett Cleland on the danger of letting “efficiency” override the fundamental economic principles of copyright. “Think of it this way: Property development could be more efficient if they did not need to worry about whose property they wanted to build on. They could identify the very best place for their development and break ground. But most of us understand how damaging such an approach would be to property rights, and hence to the economy. Intellectual property is no different.”

All cultures have their fables: simplistic stories, perhaps inspired by historical events, that serve to convey a moral lesson. There is no grey area in fables; they present a binary right/wrong view that serves to solidify the bonds of the group.

One of the primary fables of copyright’s skeptics is the story of the Supreme Court’s Betamax decision. In the late 70s, Sony introduced a device that could hook up to a television and record shows for later viewing. “Hollywood” sued Sony—because they hate innovation, arrgh! The studios lost the case, but, in spite of this, the home video market ended up being a major revenue source for them. The moral of the story: copyright owners oppose any new technologies at their own peril.

It’s a simplistic (and vastly inaccurate) tale. The real story is far more nuanced and interesting, one that is expertly told by New Yorker writer James Lardner in his 1987 book, Fast Forward: Hollywood, the Japanese, and the VCR Wars. With the 30th anniversary of the Betamax decision tomorrow, I thought it would be timely to offer a review of book, readily available at libraries and used book stores.

After a brief introduction setting the stage for the Supreme Court case, Lardner rewinds to post-WWII Japan, where Masaru Ibuku and other employees of a company that had supplied precision military equipment moved back to Tokyo to rebuild from the ashes, literally (Lardner describes how Ibuku “had to send scavenging parties out into the country side for rice and vegetables.”) Ibuku partnered with tinkerer Akio Morita to form Tokyo Tsushin Kogyo—later, Sony—in 1946. The two set their sights on the consumer electronics market, gravitating toward tape recording, a recent development from Germany. The company soon began to pursue the development of transistors as well.

Over the next several chapters, Lardner traces the pursuit of a portable way to record and playback audio and video, a pursuit that occurred over several decades and multiple continents. The tinkerers in Japan were joined by similarly driven individuals and companies in the US and Europe; the pursuit was at times cooperative and at times competitive; and progress happened both incrementally and through innovative leaps. As Lardner points out throughout this discussion, the challenges were not only technological but commercial—surely there would be a market for recorded video… but as with any new technology, development of a market is often a chicken and egg problem. The recounting here demonstrates these points through efficient narrative.

Contrary to the refrain of copyright opponents, the creative industries did not sit idly by until the introduction of the Betamax, then spring into full-on active resistance. Fast Forward details how by the mid 1960s, for example, CBS was engaged in R&D to develop EVR: electronic video recording. A decade before Betamax, news magazines were predicting a future of home movie viewing. By 1970, Twentieth Century-Fox was experimenting with releasing a library of films on EVR cartridges. In a few years, Sears began selling and distributing “Cartrivision”, a console system that could play video cartridges—and record television programs. Several film studios licensed their titles, making over 300 available for sale or rental by 1972. But, as Lardner reveals, Cartrivision was not yet ready for primetime. The technology was too novel to catch on, technical glitches slowed adoption, and the business model for the hardware had one too many kinks (for example, the cartridge player was only sold as part of a television console, a tough sell at a time when replacing televisions wasn’t something consumers did too often).

When Sony finally unveiled its Betamax unit in 1976, it didn’t suffer these problems. It was a standalone unit, the technology had improved, and the nationwide advertising campaign succeeded in selling consumers on the features and benefits, particularly the ability to record off the air.

We next shift to the beginning of the litigation, which, it may surprise you if you’ve only heard the copyright skeptic version, only involved two studio plaintiffs: Universal and Disney. The trial covered many issues we would expect to hear today: were copyright owners being harmed by this technology, was Sony purposely encouraging infringement, could the technology be designed to mitigate unauthorized copying. But the court would clear Sony of any liability.

Lardner next provides historical and legal context about copyright law for the reader. What emerges is the fact that while the technological or business changes that the Betamax brought may have been predictable, the legal implications were not. Lardner says of the lower court decision, “For the first time a court had ruled that copying for mere entertainment or convenience was fair use, that copying of a whole work could qualify, and that individual copiers could gain immunity from the law simply by committing their offenses in a noncommercial setting, while frankly commercial interests—the suppliers of the machines involved—could profit as much as they liked. Finally, and most ominously, the decision suggested that infringement wasn’t really infringement unless the victim could prove economic harm.”

Here Lardner quotes from a lecture by then federal register of copyrights David Ladd:

The glory of copyright is that it sustains not only independent, idiosyncratic, and iconoclastic authors, but also fosters daring, innovative, and risk-taking publishers. . . . Copyright supports a system, a milieu, a cultural marketplace which is important in and of itself. . . . It does not ‘give’ the author or the publisher anything. It cloaks in legal raiment the undoubted right. It does not guarantee success, or audience, or power, or riches. It is not a warranty, but an invitation to risk. When the rewards are large, we should not resent or envy, but rejoice, and we should likewise cherish every miserable failure.

Then, five years after the lawsuit was filed, the Ninth Circuit reversed and found Sony liable for copyright infringement, though the precise question of remedies—damages, an injunction, something else, or some combination of these—was returned to the lower court for determination. Proceedings were stayed once the case was appealed to the Supreme Court.

But Sony began falling behind in the market because of stiff competition. It wasn’t long before everyone and their brother were selling home video player/recorders, despite the unsettled risk of liability. The technology was a disruption of the way movie studios had been operating, and each studio responded differently. As noted earlier, there were continued experiments in offering pre-recorded films directly to consumers, other studios were holding out hope for a (nonrecordable) home videodisc system in development.

Twentieth-Century Fox was signing deals to provide home videotapes within months of the Betamax’s introduction. They were joined soon by Viacom and a number of smaller and independent copyright owners. By the early 80s, all the studios were offering films for home rental and sale—and, indeed, home rental was exploding as an industry. It was only by this point that the MPAA got involved in the issue. Following the Ninth Circuit decision, the trade association began a push for a royalty on VCRs and blank tapes in Congress, the idea being to immunize device manufacturers from copyright claims while compensating copyright owners for the infringement that such devices facilitated. The MPAA’s involvement wasn’t a foregone conclusion; as noted, some studios were already engaged in the home video market.

At the same time, the consumer electronics industry sprung into high gear. Here we see the emergence of the copyright skeptic crowd, a loose confederation of consumer electronic manufacturers, content distributors, and consumer groups. And from here, things escalated. Lardner takes us through the Supreme Court arguments, the (unlikely) reargument, and the push for Congressional action in the wake of the Supreme Court’s reversal of the Ninth Circuit that absolved Sony of any copyright liability. The money was flowing into lobbyists and trade associations on both sides. This was the time of Jack Valenti’s infamous “Boston Strangler” remark, but it was also the time of political cartoons about jack-booted video police breaking into Americans’ living rooms to stop home recording; the hyperbole was equally distributed.

In the end, no legislation addressing the Supreme Court’s Betamax decision passed. The home video market had long been born, but so too had the copyright skeptic movement. Lardner recalls talking to Dale Snape, one of the film industry’s consultants during the Betamax case at this point:

He [Snape] wondered if it had been “a personal failing on my part that I cannot seem to bring people to the conclusion that the consumer’s stake comes before the time when he is paying for something—that it comes when choices are being made about what he can choose among to buy. It is personally very sad for me,” he said, “that groups like the Consumer Federation of America and Consumers Union look at these proposals in a hostile way.” He was in awe of the electronics industry’s ability to persuade people that “because they sell to consumers, they ipso facto represent consumers. The leap of faith you have to make,” he said, “is just staggering! The Consumer Product Safety Commission exists because of concern about manufacturers.”

This is an incredible book. Lardner has talked to a wide cross-section of participants in this moment of history and has gotten some candid and thorough responses. He weaves his research into an engaging narrative that does justice to the events and the issues. This is not only a good read but an important documentation of Betamax. Given the importance of the case to modern U.S. copyright jurisprudence, I think this book ranks as a must-read for any copyright nerd.

There are some who would say that the lesson of Betamax—or at least the fable version—is that the Copyright Act should be construed to favor tech companies over artists and creators. “When ‘technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose’, and courts should be ‘reluctan[t] to expand the protections afforded by the copyright without explicit legislative guidance,'” writes academic David Post in a recent article about Aereo. Thirty years later, not too many people continue to use Betamax players—in fact, Betamax had lost most of its market share before the Supreme Court had even endorsed its legality. But they do still enjoy films such as Rocky or Taxi Driver (both released the same year the Sony litigation began). A policy that favors Betamax’s over the creation of films like that seems short-sighted and ultimately detrimental to all—including the manufacturer of the next Betamax.

Cross-posted on the Law Theories blog.

The making available issue takes center stage today on Capitol Hill as the House Subcommittee on Courts, Intellectual Property, and the Internet holds a hearing on “The Scope of Copyright Protection.” Copyright treatise author Professor David Nimmer argues for the making available right (testimony available here), and Tulane Law Professor Glynn S. Lunney, Jr., who just so happens to be my doctoral advisor, argues against it (testimony available here).

In two previous posts about the making available issue (available here and here), I suggested that the Nimmer treatise had changed its tune on whether merely making a work available constitutes distribution absent actual dissemination. After reading Professor Nimmer’s testimony, as well as reviewing Nimmer1 and the related journal article by Professor Peter S. Menell,2 I realize that I was wrong to say that Nimmer had flip-flopped on the making available question. Professor Nimmer never said that distribution requires evidence of actual dissemination in the first place.

Nimmer used to state: “Infringement of this right [i.e., the distribution right] requires an actual dissemination of either copies or phonorecords.”3 And Nimmer now states: “No consummated act of actual distribution need be demonstrated in order to implicate the copyright owner’s distribution right.”4 On its face, it appears that Nimmer has made a 180 degree turn on whether distribution requires actual dissemination. But the fault with this line of thinking is that, in the first statement, Nimmer was not saying that actual dissemination is an element of a plaintiff’s case-in-chief in proving unlawful distribution. It was instead contrasting distributions with performances.

Section 106(3) gives copyright owners the exclusive right “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.”5 Thus, the distribution right only covers “copies or phonorecords,” which are material objects in which works are fixed.6 Performances, by contrast, are ephemeral and unfixed.7 An unauthorized public performance of a work is not a distribution because nothing is fixed in a material object when one performs a work. Distributions involve tangible disseminations, while performances involve disseminations that are intangible.

It should be noted that, despite the “copies or phonorecords” requirement, distributions can occur electronically. This might at first seem strange, since sending someone a file via computer is not the same thing as handing someone a tangible copy. However, the argument that Section 106(3) does not reach electronic distributions is foreclosed by the Supreme Court’s opinion in Tasini.8 Moreover, sending someone a work electronically does involve a tangible copy, because “[w]hat matters . . . is not whether a material object ‘changes hands,’ but whether, when the transaction is completed, the distributee has a material object.”9 The person the file is sent to has a copy fixed in a material object in whatever media he stores the file on, and this fulfills the “copies or phonorecords” requirement under Section 106(3).

Turning back to Professor Nimmer’s testimony, the origin of the earlier statement in Nimmer that infringement of the distribution right “requires an actual dissemination of either copies or phonorecords” stems from the treatise’s account of the Second Circuit’s opinion in Agee.10 In that case, the Second Circuit held that “merely transmitting a sound recording to the public on the airwaves does not constitute a ‘distribution.’”11 In reporting that holding in his treatise, Professor Nimmer stated:

Infringement of this right [i.e., the distribution right] requires an actual dissemination of either copies or phonorecords. A public performance of a work is not a publication and hence, even if unauthorized does not infringe the distribution right. Given that transmissions qualify as public performances, liability for that conduct lies outside the distribution right.12

That first sentence was later quoted out of context by many courts and taken to mean that evidence of actual dissemination is an element of an unlawful distribution claim. But, as Professor Menell explains, that is not the proper interpretation:

That language, written before the emergence of peer-to-peer technology, did not attempt to address its implications for copyright law. It merely contrasted distribution, which requires the dissemination of a copy, with performance, in which no copy need be disseminated. In context, the paragraph simply means that there is no violation of the distribution right when the substance of the copyrighted work has been intangibly dispersed via performance. To violate the distribution right, instead, tangible copies must be at issue. In the peer-to-peer context, uploading followed by downloading results in a “copy” resident on the second peer’s computer, meaning that the tangibility requirement has been met.13

When Nimmer stated that distribution “requires an actual dissemination of either copies or phonorecords,” it was making the point that a distribution involves a work fixed in a material object while a performance does not. That statement had nothing to do with what evidence is necessary to prove an unlawful distribution. Furthermore, the treatise’s current statement that “[n]o consummated act of actual distribution need be demonstrated” is not a reversal from the earlier statement in Nimmer. This newer assertion in the treatise is making an evidentiary point about what proof is needed to establish an unlawful distribution. Thus, Nimmer did not change its tune on the making available issue as I erroneously had stated in my two previous posts.

Follow me on Twitter: @devlinhartline


  1. See 2-8 Nimmer on Copyright § 8.11[C][1][a]-[b] (2013). []
  2. See Peter S. Menell, In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age, 59 J. Copyright Soc’y U.S.A. 1, 20-21 (2011). []
  3. 2 Nimmer on Copyright § 8.11[A] (1996). []
  4. 2-8 Nimmer on Copyright § 8.11[B][4][d] (2013). []
  5. 17 U.S.C.A. § 106(3) (West 2014). []
  6. See 17 U.S.C.A. § 101 (West 2014) (“‘Copies’ are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘copies’ includes the material object, other than a phonorecord, in which the work is first fixed. *** ‘Phonorecords’ are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.”). []
  7. See 17 U.S.C.A. § 101 (West 2014) (“To ‘perform’ a work means to 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.”). []
  8. See New York Times Co., Inc. v. Tasini, 533 U.S. 483, 498 (2001) (“LEXIS/NEXIS, by selling copies of the Articles through the NEXIS Database, ‘distribute copies’ of the Articles ‘to the public by sale,’ § 106(3)”); see also Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (“The Supreme Court has indicated that in the electronic context, copies may be distributed electronically.”). []
  9. London-Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 174 (D. Mass. 2008). []
  10. Agee v. Paramount Commc’ns, Inc., 59 F.3d 317 (2d Cir. 1995). []
  11. Id. at 325. []
  12. 2 Nimmer on Copyright § 8.11[A] (1996). []
  13. Menell, 59 J. Copyright Soc’y U.S.A. at 21. []

A Little Bit of Laches Goes a Long Way (via Volokh Conspiracy) — On January 21, the Supreme Court will hear oral arguments in Petrella v. Metro-Goldwyn-Mayer. Though the issue involves laches, the case arises out of a claim of copyright infringement, so you’re sure to hear about it in the next several weeks if you follow copyright issues. Here is an interesting and informative look at the issues here.

The Google Book project: is it fair use? — Attorney Barry Sookman has an excellent and thorough analysis of last November’s district court decision in the Google Books litigation. He follows that with some pointed questions about the court opinion.

My Songs = Your Instagram Photos. A New Trichordist Statement of Purpose — “Your average Internet user is being exploited in exactly same way that the artists are. You are being exploited by exactly the same companies. Ad supported piracy? What’s the difference from “shared endorsements”? They take something that belongs to you without your permission. They then sell advertising against it and keep all the money without letting you set the price—much less paying you a share of the revenue.”

Top MPAA Lawyer on Google’s Failures, Suing Kim Dotcom and Obama After SOPA (Q&A) — Interesting interview. “I’ve been in this game for close to 15 years dealing with the Kim Dotcoms of the world, by whatever name they call themselves. And they all position themselves as a champion of something because it doesn’t sell papers for them to position themselves for what they are — people who just slap together some crude technology to make as much money as quickly as they can before they get caught and then run and hide.”

Google’s Knowledge Graph Boxes: killing Wikipedia? — Here is another example of how Google embraces free and open to build its market share, and then uses the resulting dominance to close off competitors. “The sad irony is that Google is very much for-profit, while Wikipedia is non-profit. Google has donated several million tax-exempt dollars to support Wikipedia in the past, and the Wikimedia Foundation thought that was a lovely series of gifts at the time. But now, Google has figured out a way to take that same Wikipedia content and “import” it directly into Google’s own Knowledge Graph space, where it can be surrounded by advertisements that put money back in Google’s pocket. And if these recent Wikipedia traffic statistics are to be trusted, the shift of Wikipedia “knowledge” over to Google may be exactly what is simultaneously robbing Wikipedia of its readers.”

Understanding Media Markets in the Digital Age: Economics and Methodology — Highly informative. “Viewpoints on such topics as filesharing, copyright enforcement, and digital distribution strategies can be quite polarized. Further complicating the picture, empirical ‘research’ appears to support both sides of the issues on these topics, with one example being the fact that some studies suggest that piracy harms sales of artistic works while others seem to suggest that piracy may be beneficial toward these sales. But not all ‘research’ is created equal.”

Google’s Spymasters Are Now Worried About Your Secrets — Wait, are you telling me there might be a downside to this idea of “permissionless innovation”? “Google has turned once private data into a commodity routinely exploited for profit. No wonder these executives are now made uncomfortable when old-fashioned dictators appropriate the snooper culture of the new technology.”

When the U.S. passed its first copyright law in 1790, it was only the second nation in the world to have a modern copyright act. The U.S. Copyright Act only protected works of American authors. But within only a few decades, more nations began protecting copyright, and the recognition that international protection was necessary began to grow. U.S. authors and publishers, concerned about the inability to protect their works abroad and the difficulty of competing with cheap British imports, began rumblings for international protection as early as the 1830s.1

On April 9, 1868, U.S. publisher George P. Putnam chaired a meeting of the “International Copyright Association”, a group of authors and publishers recently created to advocate on behalf of international copyright protection. Among those who spoke was Francis Lieber, a German-American jurist. Lieber begins by noting that opponents of international copyright have long used the same arguments. Some of this may sound familiar even today.

It is maintained that there is no such thing as literary property. What is called so is simply the effect of laws, judiciously or injudiciously enacted; it is an arbitrary creature of the law; and secondly, expediency leads us to prevent an International Copyright. Let us have books as cheap as possible.

The chief value of the latter reason depends on the first; for if there is such a thing as a right of real property in literary productions, as natural and direct as there is in a bushel of wheat for the farmer, if he is the producer, the argument founded on expediency, even if this could be made good, would have no more value than a recommendation of obtaining flour cheaper by stealing, than by honestly purchasing it. Right and wrong are not defined or confined by the blue or red colors of political demarcations on the map, any more than that they apply to religion, or mathematics, or music. Nay, allow a teacher of the law of nations to say that it is one of the characteristics of our progressive civilization, that as it advances, it takes more and more from the meaning of the colors of the map, reducing them more and more to a political meaning alone.

Is there such a thing as literary property? The main roots of all property whatsoever are appropriation and production, diffused and accumulated by exchange. Why? Is it, because, as the saying used to be, property is the creature of Government? By no means. Property invariably precedes government, as many other institutions do. It is because every human being is as conscious as of his own identity, that if he appropriates what belongs to no one—for instance, the trunk of a tree—and if he produces a new thing—for instance a canoe out of that tree—this appropriation, or this product, is verily his own; that he can do with it what he likes, and that every one who in turn attempts to appropriate it without the process of exchange, is an intruder, a robber, and the attempt will not only be resisted but resented. The whole right of property, however developed and ramified in a code of laws it may be, rests on this primordial consciousness of mine and thine—on appropriation and production; and I now appeal to the intuitive conviction of every living man to say whether a literary work, say Baker’s description of his toilsome journeys in Africa, or a Faust of Goethe, a musical composition, say a requiem by Mozart, is not a production in the fullest sense of the word, even more so than a barrel of herrings which have been appropriated in the North Sea, pickled and barrelled by the fisherman; and whether any one has a right to meddle with this property by production, any more than you or I have to meddle with the barrel of herrings.

But, say our opponents, that which you call the literary work consists of ideas which were common property, gathered, strung together. They belong to the common civilization, and cannot constitute property. Indeed! why not go further? The alphabet used in every book is common property; the words of which it consists have been published long ago in dictionaries.

We do not claim property in ideas, any more than Beethoven claimed property in the tones he indicated, or the laws of harmony and disharmony which the Creator has indelibly implanted in the human soul; but he justly claimed by natural right the ownership of his symphonies, and, therefore, the exclusive right of multiplying them by signs and on material. He deeply resented their piratical reprint.

An author, or a composer, or an artist is what he is, in a very great measure indeed, in consequence of the civilization of his times or of the ideas which, erroneously and inelegantly, are declared common property; but is the farmer what he is, less by the common civilization in which his existence has fallen? Does the farmer, perchance, create his grain, or does he only produce, that is, dispose his combining and shaping agency so that with the help of the natural agents his labor results in, the grain? His share in agricultural production is small, indeed, compared to the share which the author, or composer, or sculptor has in the production of his work. But the question is really more positively and directly answered by asking: Do you, or do you not, feel and know that Paradise Lost was Milton’s own, and that in the world of exchange to which, by divine decree, all of us must go for subsistence, he had an exclusive right to dispose of his work?

If literary property is merely a thing so called; if there is no natural right of literary property, why does our law and the municipal law of every civilized country acknowledge and protect it in each respective country? There is no exception to it. And if literary property is real property, why not acknowledge and protect it internationally, as all righteous property is?

To the objection that literary property is of a very recent date, which is said to prove that, like the patent law, it is altogether a legal invention, and originates from no natural right, I would simply reply that literary property was claimed as soon as it obtained importance in the market, that is, immediately after the invention of the art of printing. There is a passage in the works of Dr. Martin Luther, in which he asks the “Sirs Printers” why they rob one another, and make money of what belongs to another, leaving only loss and dissatisfaction to him who incurred all the expenses in order to get out a book; and it will be remembered how short a time there elapsed between the humanizing invention of the art of printing and the great translation of the Bible by one man—Martin Luther. As to International Copyright, it belongs to our century indeed; but the whole law of nations has made its greatest strides only in recent times. Down to this century, the highest statesmanship was believed to consist in the greatest amount of injury that could be done to a neighbor. The barbarous confusion of foreigner and enemy still somewhat adhered to our race. Now it is gladly acknowledged in the commonwealth of nations to which we belong that the great law of good neighborhood, all-important among individuals, is not less so among nations, and the existing positive law of nations shows us that treaties are in force between Germany, France, England, Italy, internationally protecting literary and aesthetical copyright. Why should we lag behind? We, whose boast it is to honor and protect human rights with eager jealousy, should we, of all leading nations, disregard the right of property, because the owner is a foreigner?

Speech of Francis Lieber, Meeting of Authors and Publishers at the Rooms of the New York Historical Society, April 9, 1868.


  1. See, e.g., “International Copyright“, the New Yorker (Oct. 12, 1839). []

Happy New Year, readers! I hope everyone has had a wonderful holiday season. Now it’s time to get back to work.

It Turns Out Shia LaBeouf Is Your Anti-IP Laws Messiah, Internet — 2014 starts out with a bang, with this brilliant take on a recent anti-copyright screed by actor Shia LaBeouf. Be sure to check out the author’s previous piece, How Copyright Law Gave us Star Wars, as well.

Blame Silicon Valley for the NSA’s data slurp… and what to do about it — One of the top stories of 2013 were revelations about widespread NSA surveillance. But as Andrew Orlowski points out here, the NSA is only following the lead of Google, et al.

TV Broadcasters Fire Back at Aereo’s Supreme Court Claims — Just before Christmas, TV broadcasters filed their reply brief in Aereo, where they are seeking Supreme Court review of the Second Circuit’s holding that the definition of public performance is technology-dependent. Aereo is in the stack of petitions the Supreme Court will look at during its first conference of the new year on January 10, and it was featured in a SCOTUSBlog Petition of the Day.

Living by the Pen — Turkish novelist Kaya Genç discusses some of the deep challenges he and other writers have faced, but ends on an optimistic note. “For more than ninety years of republican history Turkish freelancers had been silenced either by state institutions which employed them or by the lack of a proper literary market. But as I look around and try to see how other authors from my generation are doing nowadays, I see how they no longer share the old state ideas which make freelance authors suspect in the eyes of the intellectual community. On the contrary, they are increasingly joining the ranks of independent writers. I know, from experience, that it won’t be state patronage or employment by special institutions that will save them from the cold realities of pessimism, poverty and prosecution. No, don’t make them part of the state apparatus or turn them into ideologues or employ them as editors: if you want those writers to succeed, just pay them.”

Just How Long Should Copyright Terms Be? — A thought-provoking piece from Justin Colletti. “Recently, I read a blog post from a Duke University professor who laments that ‘Under current copyright law, we’ll have to wait until 2053′, for works such as On The Road, From Russia With Love, Funny Face, Atlas Shrugged and The Cat In The Hat to enter the public domainBut he never seems to fully explain to my satisfaction: Wait for what?

10 Great Internet Essays Condemning… the Internet — Paste Magazine rounds up some recent articles that take a critical look at the invisible technology of the internet.

Why TED is a Recipe for Civilizational Disaster — Not included in the list above, but along the same lines, is this recent TEDx talk by cultural theorist Benjamin Bratton. “Keep calm and carry on “innovating” … is that the real message of TED? To me that’s not inspirational, it’s cynical.”

How a Fabricated Story about Iron Maiden’s Love of Music Pirates Became Internet Truth — In case you missed it, last week saw the tech press breathlessly spreading a story about a band that “embraced piracy” to plan a tour. Except, as TechCrunch points out here, the story turned out to be fake.

Gibson Guitars On TV: How Props Master Danny Rowe Finds the Great Six-Strings on Nashville — Behind-the-scenes crew have the most fascinating jobs. Here, Gibson Guitars speaks with instrument wrangler Danny Rowe, who currently wrangles guitars for TV’s Nashville.

The Fascinating Method by which Megaupload Deleted Copyright Content without ever Deleting Copyright Content — The upcoming year is likely to bring new developments in the Megaupload criminal proceedings, though if what has gone on so far is any guide, then who knows what those developments may include. The DOJ publicly released hundreds of pages of evidence it had on Megaupload and its operations late last year, and here, Forbes digs into those bits that demonstrate how Megaupload operated behind a sham of DMCA compliance. Also check out the Southland Time’s editorial, Not Sitting on a Fence.

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