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In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age


Peter S. Menell


University of California, Berkeley - School of Law

February 15, 2012

Journal of the Copyright Society of the USA, 2012

Abstract:     
Prior to the emergence of peer-to-peer technology, the Copyright Act’s distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to “publish” and “vend,” the 1976 Act speaks of a right to “distribute.”

Interpreting “distribute” narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages.

Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term “distribute” in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to “publish” and “vend” within the right to distribute, and rejects the position that Congress required proof of “actual distribution” to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

Number of Pages in PDF File: 68

Keywords: Copyright, Distribution Right, Enforcement, Statutory Interpretation, Digital Copyright, File Sharing

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Date posted: September 20, 2010 ; Last revised: April 12, 2014

Suggested Citation

Menell, Peter S., In Search of Copyright’s Lost Ark: Interpreting the Right to Distribute in the Internet Age (February 15, 2012). Journal of the Copyright Society of the USA, 2012. Available at SSRN: http://ssrn.com/abstract=1679514 or http://dx.doi.org/10.2139/ssrn.1679514

Contact Information

Peter S. Menell (Contact Author)
University of California, Berkeley - School of Law ( email )
215 Boalt Hall
Berkeley, CA 94720-7200
United States
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