Publication and distribution (was: Copyrighting)

On Wed, 30 Jul 1997, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 7/29/97, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > That's consistent with the definition of "publication." The gist of
> > publication is distribution of copies, and specifically excludes
> > mere public display or public performance.
>
> Copyright Office practice is inconsistent with the proposition that
> mounting material on the web is a distribution of copies? Oh dear.
> Commissioner Lehman is going to *soooo* disappointed.

It's not really inconsistent with the White Paper's position on the present state of the law, although it's inconsistent with the reforms proposed. The White Paper says that present law can be interpreted so that distribution to include transmission, and that it ought to be so interpreted, but concedes that it's ambiguous and should be revised to expressly call out transmission.

In any case, I would distinguish between a distribution for a section 106(3) infringement analysis, and a section 101 publication analysis. Obviously, under a 106(3) infringement analysis, we are looking to the distribution by a party other than the copyright holder.

Although it's not expressly stated in the statute, I have always considered the 101 publication definition to be limited to distributions by or authorized by the copyright holder. Otherwise, we get into some odd situations under which an infringer's distributions could be used to negate the copyright holder's right to statutory damages and attorneys' fees, at least as applied to later infringements.

My inference that a publication distribution must be an authorized distribution is also reinforced by the second sentence in the definition: "The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication."

There's a counter-argument, of course, and it's found in the wording of section 401, which refers to a work being published under authority of the copyright owner; the implication is that, for the phrase "under the authority of the copyright holder" to have meaning, publication must not inherently require this authorization. I note, however, that the section 412 restriction on remedies for unregistered published works does not include that qualifier.

The Copyright Office web site is down at the moment, so I can't check the text of the forms or their instructions, to see whether they explain "published" as used on the registration forms as requiring authorization of the copyright holder. (This is, as you will recall, the original context of the query.) I suspect that they're silent on the matter.

On Wed, 30 Jul 1997, Vance R. Koven <vrkoven[_at_]world.std.com> wrote:
>
> Oh dear, does that mean the Copyright Office rejects MAI v. Peak?

No; MAI v. Peak goes to reproduction, not to distribution.

--
Terry Carroll       | "Mars ain't the kind of place to raise your kids.
Santa Clara, CA     | In fact, it's cold as hell."  - Bernie Taupin, 1972
carroll[_at_]tjc.com     | "Air temperatures ... show an afternoon high near +9
Modell delenda est  | degrees Fahrenheit." - Mars Pathfinder Mission, 1997