24 April 2005

I'll Have to Talk to My "Distributor"

Susan Crawford makes some trenchant observations about the recent copyright legislation:

It seems our Congressional representatives may have agreed without a great deal of discussion to language ("making available") that will be cited in support of an expanded exclusive "distribution right" — infringement of which is criminal. Because "transmission" of an electronic copy is already covered by the distribution right, this may not be a big deal — it's a small step from "transmission" to "uploading." And there's an argument that uploading is a material contribution to unlawful reproductions of electronic works by others (another infringing activity).

But this expanded distribution right does give another lever to content owners in negotiations with ISPs. If an ISP is able to see that some of its subscribers are operating servers or "making available" electronic material to others on a largescale basis, then it may be deemed to know that uploading is happening and (presumptively) infringement of this newly expanded exclusive "distribution" right is occuring. Content owners can put pressure on the ISP to (1)enforce terms of service that require subscriber compliance with applicable law; (2) require personal information of the subscriber to be made quickly available; and (3) kick off subscribers who are engaging in this activity. Most troubling of all, ISPs who see uploading by subscribers may be deemed to be contributory or vicarious infringers themselves.

"What's Distribution?" (23 Apr 2005).

Although I think the DMCA may provide an appropriate shield to ISP liability, that will require ISPs to actually comply with § 512(c) and register as agents (among other requirements, see Ellison v. AOL). That, in turn, will make it easier to actually find these SOBs. I'm no defender of the ethics (or, too frequently, lack thereof) in the so-called "content industries," but that doesn't mean that anyone who attacks them by any means is necessarily a righteous freedom-fighter. The "collateral damage" is usually to my clients—the people who actually create copyrightable material. In any event, though, Professor Crawford's point is well-taken: As usual, the amendment process may have ended up amending something that most of Congress didn't even conceive of as being on the table.

If nothing else, this argues for a much greater role for the Copyright Office under the Administrative Procedures Act. Then perhaps we could be spared the spectacle of John Ashcroft singing… or maybe not; copyright disputes seem to have had little impact on John Fogerty's presence on the airwaves, and he's not a helluva lot better as a singer than is Bob Dylan.