The internet, occasionally, has been used to disseminate pictures of nudity. Whether art or free expression, it is distribution, and if the material is copyrightable, then the owner has the right to their distribution. So, does the Ninth Circuit's analysis of pictures of nude women help us understand the copyright issues relating to file sharing?
Perfect10 sues Google, objecting to their use of the Perfect10 pictures in the Gooogle system. Actually, Perfect10 asserts infringement of its display rights, which really does not help us understand file-sharing issues if the files are not pictures, but music. And the Ninth Circuit discusses the genealogy case, Hotaling, and Napster for its analysis.
The Ninth Circuit panel states that "Perfect 10 incorrectly relies on Hotaling v. Church of Jesus Christ of Latter-Day Saints and Napster for the proposition that merely making images 'available' violates the copyright owner’s distribution right. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997); Napster, 239 F.3d 1004. Hotaling held that the owner of a collection of works who makes them available to the public may be deemed to have distributed copies of the works. Hotaling, 118 F.3d at 203. Similarly, the distribution rights of the plaintiff copyright owners were infringed by Napster users (private individuals with collections of music files stored on their home computers) when they used the Napster software to make their collections available to all other Napster users. Napster, 239 F.3d at 1011-14." The Ninth Circuit panel calls this "deemed distribution."
Since Google did not have a copy of Perfect10's nude women, but linked to them, the Ninth Circuit reasoned that Google could not distribute copies. File sharers do own a copy of the work. They are a big step down the road to deemed distribution.
Next,the even bigger hurdle, contributory infringement. “One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930.
Courts are struggling with the deemed distribution issue. Here is another district court decision:
ReplyDeletehttp://www.loeb.com/files/Publication/be889f1a-26ff-4131-9eb7-015819d6b65d/Presentation/PublicationAttachment/4b0fc67a-79e5-41eb-b3fb-03c6e0919948/Elektra%20v%20Barker%20SDNY%20March%202008.pdf
The NY Court notes that the word “distribute,” the crucial
term in Section 106(3), is not defined in the Copyright Act. But, it notes that "publication" is, and equates the two. In an interesting twist, the Court goes to legislative history, and notes that "the House and Senate Judiciary Committees of the Ninety-
Fourth Congress consistently described Section 106(3) as protecting both the right of
'distribution' and the right of 'publication,' and thus apparently viewed these concepts as
synonymous." Judge Karas, of the SD NY, then distinguishes between "making available" copryighted material and "offering to distribute for purposes of further distribution," language from the statute.
Is this a distinction worth noting?