June 13, 2006
Music File in P2P Share Directory May Be a Distribution--Interscope v. Duty
By Eric Goldman
Interscope Records v. Duty, No. 05-CV-3744-PHX-FJM (D. Ariz. Apr. 14, 2006)
The number of P2P direct infringement opinions is growing, and the news isn't good for file sharers. The flagship case is BMG v. Gonzalez, where the 7th Circuit rejected a file sharer’s fair use defense out of hand. IN April, Evan Brown reported on a BitTorrent case where the court awarded a $35k default judgment against the file sharer. And then there's the Interscope v. Duty case, an interesting ruling from 2 months ago that appears to have been largely overlooked. (The only blog discussions I found were here and here).
What is a "Distribution"?
Interscope v. Duty deals with a recurring topic: what constitutes a "distribution" online? The Copyright Act doesn't define the word "distribution," which has created some confusion. Consider the following data points:
* Hotaling v. Church of Jesus Christ of Latter Day Saints (4th Circuit 1997) said: "When a [privately operated but publicly accessible archive] adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public." Thus, a distribution occurred without the copyrighted works leaving the building or any requirement that anyone actually accessed the works (although the plaintiff, at least, did in fact access the works).
* In the ART Act, Congress added 506(a)(1)(c), which criminalizes "the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public." This was clearly intended to cover the warez traders who upload files to servers even if those files are never downloaded by others. However, the added language also could include the placement of copyrighted works in P2P share directories. (Note, however, that any criminal infringement must be "willful," which may be inconsistent with involuntary storage of files in a share directory--more on this in a moment). However, this language added to 506(a) does not amend the 106(3) distribution right, as Judge Patel confirmed in one of the many Napster rulings.
* Then, in May 2005, Patel ruled that Napster's index of infringing files did not, by itself, constitute a distribution of the indexed works. However, Patel didn't address whether the users were themselves engaged in distribution.
Interscope v. Duty: A File in a Share Directory May Be a Distribution
Now, the Interscope v. Duty case adds to the discussion (and the confusion). In this case, the file sharer tried to dismiss the case because she didn't “distribute” the works. Although distribution isn’t defined, the court says that “distribution” and “publication” are synonymous, and publication includes "offering to distribute" copyrighted works. Thus, the court says, "the mere presence of copyrighted sound recordings in Duty's share file may constitute copyright infringement." But in a footnote, the court says, "we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology..." so the court will look at this issue more closely on summary judgment.
So, is putting a copyrighted work in a P2P share directory constitute a 106(3) distribution or not? I could argue the current law either way, but in most cases the question is academic. Even if the file placement does not constitute a distribution, a copy of the file was made somewhere in the process, and that copy can violate the 106 reproduction rights. Thus, the defendant still will be on the hook for copyright infringement--it doesn't really matter what 106 right is used to get there.
We can see this from the warez trading cases, where this issue has come up obliquely. Even before the ART Act, the government implicitly took the position that every copy on a warez server is infringing, regardless of whether it was ever downloaded by anyone else. And to the extent that it has been litigated, the courts appear to have accepted this. (See, e.g., US v. Rothberg).
However, warez traders differ from individual file sharers in a few ways. First, warez traders usually make infringing copies (the initial copy, an uploaded copy, and downloaded copies) regardless of any distribution. Second, warez traders are typically treated as part a conspiracy where all group members are vicariously liable for every infringement committed within the conspiracy's scope.
In contrast, if a file sharing software user copies files from a legitimately acquired media owned by the user and makes the copies solely for his/her personal noncommercial enjoyment (and not for distribution), some (many?) courts will excuse those copies as fair use. Further, if the P2P file sharing software automatically places those legitimately copied files into the share directory, courts might excuse the copying because the user’s “distribution” actions were not really volitional. Therefore, unlike the warez traders’ copying, in theory, a file sharing software user’s chain of copying may be excused through placement in the share directory.
So what's the right answer? We'll have to wait for some courts to weigh in, but I have some personal views. Personally, I think a distribution occurs only when the "bits" move from one person to an unrelated person. Thus, if a music file in the share directory is never actually downloaded by anyone else, I don't think there's been a distribution. Further, if the software user didn't expect the file to be placed in the share directory, I don't think there's volitional copying or distribution. Thus, I think that in P2P file sharing cases, the copyright owners should have to prove (a) the user expected the file to go into the share directory, and (b) the file was actually downloaded by someone else. Otherwise, all of the preceding behavior may be legally insignificant or excused.
There were two other interesting tidbits from Duty's counterclaims against the plaintiff. First, Duty argued that the plaintiff tortiously intruded into her seclusion by looking at her share directory. The court dismisses this argument quickly, saying that the share directory isn't a private space. I think this is generally right, although if the P2P network were private, I could imagine this issue being more colorable.
Second, Duty argues that the plaintiff committed the tort of abuse of legal process. The court dismisses this because the lawsuit lack the requisite improper motivation. However, the court takes a veiled dig at the RIAA, saying: "It may be an abuse of the legal process for a collection of large corporate entities to use their substantial financial and intellectual capacities to prey upon less capable individuals and unfairly pressure them into settlement." However, this statement doesn’t help Duty because she didn't allege this behavior (but I'm guessing future defendants/counterplaintiffs will!).
As I said, the RIAA v. the people cases aren't going well for the people. In the end, many people did commit garden-variety infringements and will pay for those infringements, regardless of whether those enforcements advance a larger goal of curbing piracy or make sense from a marketing standpoint. On the other hand, I think courts should demand more rigor from copyright owner plaintiffs—courts should confirm that the plaintiffs are suing the actual infringer (and not just the computer owner), the plaintiffs have legal standing to enforce the copyrights they claim were infringed, and (I argue) that files were downloaded before finding a distribution. Unless the courts keep the plaintiffs honest, too many innocent defendants will, in fact, be “unfairly pressured” into settlements.
UPDATE: I knew this topic was hot, but I don't think I realized all of the action over the distribution right. Fortunately, Fred von Lohmann, who is more on top of the pending litigation in this area, wrote to share his thoughts. He wrote (republished with his permission):
"Read your blog post today, and wanted to bring a few other cases to your attention. This is emerging as an extremely hot issue right now (see, e.g., the claims in the XM lawsuit, which include direct infringement claims based on a distribution theory).
The 106(3) issue has also been joined in both Elektra v. Barker and Fonovisa v. Alvarez, where EFF has filed amicus briefs on the 106(3) issue. [EFF's briefs in Barker and Alvarez]. In Barker, CCIA also filed amicus on our side, arguing a narrower question. Amicus briefs on the other side were filed by the USA (in both cases) and MPAA (in Barker).
You may want to take a look at these briefs for at least two reasons:
1. my view is that 106(3) cannot be implicated unless a physical object changes hands, which is to say it has no application to any P2P (or other internet) cases. While that may seem counter-intuitive, Tony Reese has written a thorough article laying out the relevant statutory language and leg history.
The reason it matters, despite the fact that there are also 106(1) claims available against P2P sharers, is that the characterization can matter a great deal in other contexts. After all, what we have with a P2P exchange is a transmission, followed by a recording. There are many who have licenses to publicly perform (transmit), but do not have licenses to distribute (record), such as DirecTV and XM Radio. So a precedent here will have implications elsewhere.
2. the USA brief specifically argues that their criminal prosecutions will be jeopardized unless they can use the 106(3) right. So they don't appear to agree with your view that 106(3) is redundant with 106(1) here.
[And] the "does merely offering violate 106(3)" has also come up in the MPAA amicus brief in the Perfect10 v. Google Ninth Circuit appeal. So I think it's fair to say it's being hotly contested on a variety of fronts as we speak."
Posted by Eric at June 13, 2006 01:24 PM | Copyright
I haven't read the case yet, but isn't "by sale or other transfer of ownership, or by rental, lease, or lending" (from the s.101 definition of "publication") relevant here as well? If publication is the same as distribution, that language seems to require some sort of transfer, and even when there is a download there is no transfer, just a reproduction on the other side. The uploader is facilitating reproduction, but not distributing.
Posted by: Rebecca Tushnet at June 13, 2006 04:22 PM
I sometimes visit your blog and read articles.
Recently I checked CNET download.com and found 'Window P2P Extension Pack'.
This type of p2p program will apprear more and more and eventually RIAA will surrender sooner or later...
NOW YOUR Windows Explorer is your file sharing application!,
What else could you need more?
This is the future of P2P application for Windows users!
Posted by: andy chris at June 17, 2006 12:42 PM