Page:Fair Circumvention.djvu/34

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[Vol. 74:1

preferences or policy judgments,[1] it seems quite clear that the role of the courts in the copyright arena is not, and properly should not be, so limited. To the contrary, the text and history of federal copyright legislation in the United States have made the courts more coequal partners than mere servants of the legislature.

The courts would face a nearly insurmountable task in striving to apply the Copyright Act strictly as written, for the statute includes provisions that simply cannot be enforced according to their literal terms.[2] The statute’s simultaneous grants of overlapping rights to multiple parties without expressly ranking their relative priority have raised challenging questions of policy for the courts.[3] Elsewhere, the statute leaves pivotal terms entirely undefined.[4] The nature of the text to

  1. For a book-length critique of the “faithful agent” theory, see William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994).
  2. For example, the literal text of the copyright statute appears to excuse all unauthorized copying from liability for copyright infringement—precisely the opposite of the legislative purpose. First, the statute confers on copyright holders the “exclusive right[] . . . to reproduce the copyrighted work in copies.” 17 U.S.C. § 106(1) (2006) (emphasis added). “Copies,” the statute tells us, “are material objects . . . in which a work is fixed by any method . . . .” Id. § 101 (emphasis added). And a work becomes “fixed,” we learn, “when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Id. (emphasis added). A woodenly literal reading of this text might suggest that copyright infringement is definitionally impossible, because any copy made without “the authority of the author” is not “fixed” within the meaning of the statutory definition, and hence not a “copy” that the copyright holder alone has the right to make. The courts, of course, have correctly refused to read the statute in such a way as to subvert the very possibility of liability for infringement in this fashion. See, e.g., Lewis Galoob Toys, Inc. v. Nintendo of Am., Inc., 964 F.2d 965, 968 (9th Cir. 1992) (“A derivative work must be fixed to be protected under the [Copyright] Act, . . . but not to infringe.”) (emphases omitted).
  3. See, e.g., N.Y. Times Co. v. Tasini, 533 U.S. 483, 493 (2001) (reasoning that individual authors’ reproduction and distribution rights override compiler’s rights in collective work in which authors’ contributions were included); Pickett v. Prince, 207 F.3d 402, 405-06 (7th Cir. 2000) (reasoning that copyright holder’s right to prepare derivative works takes precedence over separate provision granting creators of derivative works independent rights in their own creations).
  4. See, e.g., Lindsay v. R.M.S. Titanic, 52 U.S.P.Q.2d 1609, 1612 (S.D.N.Y. 1999) (construing the undefined statutory term “author”). Congress’s choice not to supply a definition of this key term in 17 U.S.C. § 101 appears to have been deliberate, in light of the litigated controversies over the meaning of “authorship” that predated the Copyright Act of 1976. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884).

    The Copyright Act grants copyright holders the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public.” 17 U.S.C. § 106(3) (2006). The statute is silent, however, on the meaning of the term “distribute,” which has, predictably, resulted in conflicting interpretations by the courts. Compare A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (reasoning that users of file-sharing software violated distribution right by “upload[ing] file names to the search index for others to copy”), and Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) (reasoning that a public library violated distribution right by “add[ing] a [copyrighted] work to its collection, list[ing] the work in its index or catalog system, and mak[ing] the work available to the borrowing or browsing public”), and Marobie-FL, Inc. v. Nat’l Ass’n of Fire Equip. Distribs., 983 F. Supp. 1167, 1173 (N.D. Ill. 1997) (placing copyrighted files on a web server from which they may be downloaded by others constitutes “distribution”), with Perfect 10, Inc. v., Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (agreeing with district court that “distribution requires an actual dissemination of a copy”) (quotation marks omitted), and Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. Ariz. 2008) (“Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”), and Elektra Entm’t Group, Inc. v. Barker, 551 F. Supp. 2d 234, 244-45 (S.D.N.Y. 2008) (holding complaint’s allegation that defendant “made . . . [c]opyrighted [r]ecordings available for distribution to others” insufficient to allege violation of the distribution right) (internal quotation marks, citation, and alteration omitted). For a critique of the courts’ expansion of the distribution right to include transmissions of copyrighted works over the Internet, see R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected Solution to the Controversy Over RAM “Copies”, 2001 U. Ill. L. Rev. 83, 125-38.

    In 17 U.S.C. § 102(a), Congress listed eight nonexclusive categories of copyrightable subject matter. Although five of the categories carry accompanying definitions in § 101, “musical works,” “dramatic works,” and “pantomimes and choreographic works” do not. 17 U.S.C. § 102(a)(2)-(4) (2006). Congress explained the omission by remarking that these terms “have fairly settled meanings.” H.R. Rep. No. 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5666-67.