Re: Publication and distribution (was: Copyrighting)

From: Dan L. Burk <BURKDANL[_at_]shu.edu>
Date: Sat, 02 Aug 1997 11:46:53 -0400

On 7/31/97, Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> 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.

I think this misses Vance's (and my) point. If publication is a distribution of copies, and the Copyright Office does not recongnize web pages as having been published, then either they deny that there was a "distribution" or that there were "copies," or both.

If one believes MAI, then RAM reproductions are copies. If the copyright office accepts that, but denies that web pages are published, then it has to explain how the RAM reproductions -- copies -- of your web page got into my machine without being distributed. The only sensible interpretation of their position is that they deny that RAM reproductions are copies in the first place.

(I am not, of course, claiming that they have in fact thought this through -- indeed, I doubt they have -- I am rather saying that this is the only way to make sense of their position.)

One could also try (as I believe that you were attempting to in your reply to me) to claim that "copies" for publication and "copies" for infringement are different things. I'm afraid that I have a very hard time making sense of this, because (as you pointed out) the only difference is whether the reproduction is authorized or not.

That seems to me not only an irrelevant distinction, but a bizarre one: the result is that RAM reproductions that authors make intentionally are not recognized "copies" under the statute, whereas unauthorized RAM reproductions *are* recognized. I cannot imagine that is what Congress intended in the relevant sections, or that it is a good legal result.

The Copyright Office's position appears to me to undermine the White Paper claim that MAI v. Peak is the "settled" law of the land. I will leave it to the reader to speculate as to whether this would be any cause for dismay in the Copyright Office.

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Dan L. Burk
Seton Hall University
burkdanl[_at_]shu.edu

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Received on Sat Aug 02 1997 - 18:11:24 GMT