Re: Re: Re: Patel's order & Distribution rights

In the Hotaling case, the copy was a physical copy, made available for physical distribution, as in being borrowed from the library. The library was NOT liable for having a photocopier near the stacks. A significant distinction, because library circulation is consistent with the notion that the distribution right is applicable solely to tangible copies, and not to making available an original from which someone can make a reproduction (whether by downloading or photocopying in the library).

Of course, if the library said "here is the book and there is the copier, we will make sure there is enough paper since you plan to copy the entire work," the library might be contributing to the infringement of the reproduction right, just as a person making available their hard drive over a network might be guilty of contributory infringement of the reproduction right if they do so in a way calculated to assist such infringement.

But if I'm a college kid and someone borrows my laptop and makes infringing copies of works without my knowledge or consent, it should make little difference if access to those files was over a network rather than through physical possession.

John

John T. Mitchell
http://interactionlaw.com
1-202-415-9213

On May 17, 2005, at 6:30 PM, Eric Goldman wrote:

> I see things differently. I think making a copy available for
> downloading does constitute a distribution based on the Hotaling case,
> a point I made in my analysis of the ART Act.
> http://blog.ericgoldman.org/archives/2005/04/artists_rights.htm. John
> Ottaviani has also expanded his earlier email about the Patel ruling
> and why it's not a big deal at
> http://blog.ericgoldman.org/archives/2005/05/new_ruling_from.htm.
>
> Eric.
>
> --
> Eric Goldman
> Marquette University Law School
> egoldman[_at_]gmail.com
> Personal website: http://www.ericgoldman.org
> Blogs: http://blog.ericgoldman.org and http://blog.ericgoldman.org/
> personal/
>
> On 5/17/05, Ethan Ackerman <eackerma[_at_]u.washington.edu> wrote:
>
>> As Kevin, Mike and John each raised in their (probably
>> simultaneous) replies
>> to Dan's post - Dan's first several paragraphs about the case are
>> probably
>> inaccurate, and may complicate the point he is trying to make.
>> The "not a
>> big deal" order just declines supplemental briefing on the ART
>> Act's impact
>> on Napster et al's summary judgment motion re: non-infringing ness of
>> maintaining an index (that's my belief :)
>>
>> Dan's point that "making available for download" is not= "exclusive
>> distribution right" is worth making nonetheless, and it is a
>> distinction of
>> some legal importance, especially in international treaties and
>> comparisons
>> between various nations' legal regimes. If you read the rest of
>> his post,
>> it contains interesting practical matters (read litigation
>> hurdles) too.
>>
>> Susan Crawford has a post (including an internal link to an
>> earlier post)
>> about just this issue, and it is also definitely worth reading.
>> http://scrawford.blogware.com/blog/_archives/2005/5/12/842418.html
>>
>> Ethan Ackerman
>>
>
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Received on Thu May 19 2005 - 02:00:41 GMT