Re: New York Times Co. v. Tasini

At 6:34 PM -0400 6/26/01, Patrice A. Lyons wrote:
>Having just read the decision of the Sup. Ct. in Tasini, I have come
>away with the impression that on a fundamental tenet of copyright law,
>the Court may have introduced an ambiguity. In particular, I refer to
>the discussion of the rights under sec. 106. The court states, without
>explanation, at p. 13 of its opinion, that "LEXIS/NEXIS, by selling
>copies of the Articles throught the NEXIS database, 'distribute
>copies' of the Articles 'to the public by sale.'" A clarification is
>offered at p. 14, n. 14, of the dissenting opinion to the effect that:
>"Perhaps it would be more accurate to say that NEXIS makes it possible
>for users to make and distribute copies." But this explanation wasn't
>adopted by the majority. In any event, the reach of the distribution
>right in the context of sec. 201(c) would apply to what the publisher
>does, not the end user.
>
>The court appears to think that there is a distribution of a "copy"
>(defined in sec. 101 as a material object in which a work is fixed,
>see p. 14 of decision), when a work is made available to the public in
>some electronic form by a database producer. In a network environment,
>this would mean that a physical object is distributed over a wire or
>through the air. There is no discussion of the right of public
>performance and only a passing reference to the right of public
>display (see p.13, n.8; and p. 14 of the dissent, n. 14). In any event,
>sec. 201(c) doesn't cover the rights of public performance/display,
>only reproduction/distribution.

There is an argument, I guess, that the digital transmission from server to client is not "distribution" of a "copy" because the transmission is not of a "material object." But if that is the reading, there isn't much left of the distribution right or the reproduction right (or performance/display for that matter). The server is a material object on which the work is fixed, but obviously the server-copy is not distributed, nor is it the server-copy that is performed or displayed on the client computer. It is the client computer that reproduces the server-copy for performance/display.

Finally though, I don't the courts are going to be reluctant to conclude that if you start with a server-copy and end up with a client-copy, the server operator is engaged in unauthorized reproduction, distribution (and performance/display if it matters). Otherwise the distribution right is limited to hard copies, which blows a fairly big hole in the law. Maybe the hook is in the last sentence of the definition of "fixed": "A work consisting of sounds, images, or both, that are being transmitted, is 'fixed' for purposes of this title if a fixation of the work is being made simultaneously with its transmission." I guess the server-copy of the work consists of an "image" of the work and the transmission of the work by the server is simultaneously fixing that image on the client computer.

>This ambiguous language may have adverse consequences unless there is
>some clear rationale developed with respect to the application of the
>"first sale" doctrine under U.S. law. Indeed, the Copyright Office is
>now considering these issues in its report to Congress re secs. 104/117.

I'm not sure I understand your point. The Court's assumption that digital transmission does amount to distribution would seem to open the door to the argument that first sale applies to digital distribution. In the end, I think that result is doubtful because of the way 109 is worded -- "the owner of a PARTICULAR copy ... is entitled ... to ... dispose of ... THAT copy ...." This almost seems to underscore the less exacting language of the exclusive right -- "to distribute copies ... of the copyrighted work...." In other words, 109 lets you dispose of the server-copy, i.e. the particular copy fixed on the server, by disposing of the server, but doesn't cover the transmit-and-delete (trust-me-I-really-did) disposition. 106 more generally prohibits distribution of "copies", including those fixed only by virtue of the simultaneous transmission and new fixation. Does that work?

John Noble Received on Wed Jun 27 2001 - 22:43:26 GMT