Advanced Copyright Issues on the Internet - Fenwick & West LLP

to members of the public by Internet access at different times and places as nevertheless“public,” by analogy to the public performance and public display rights.As previously discussed with respect to the public display right, the court in PlayboyEnterprises, Inc. v. Hardenburgh, 456 held the defendant operators of a BBS directly liable forinfringement of the public distribution right by virtue of making available photographs tosubscribers of the BBS for a fee, many of which were copyrighted photographs of the plaintiffPlayboy Enterprises. The court’s basis for finding liability was derived principally from the factthat the defendants had a policy of encouraging subscribers to contribute files, including adultphotographs, to an “upload file” on the BBS and the defendants’ practice of using a screeningprocedure in which its employees screened all files in the upload file to remove pornographicmaterial and moved them into the generally available files for subscribers. These facts led thecourt to conclude that the defendants were active participants in the process of copyrightinfringement.With respect to the requirement that the distributions be “to the public” in order toinfringe the distribution right, the court ruled that “Defendants disseminated unlawful copies of[the plaintiff’s] photographs to the public by adopting a policy in which [the defendants’]employees moved those copies to the generally available files instead of discarding them.” 457The court also concluded that the defendants were liable for contributory infringement by virtueof their encouraging of subscribers to upload information to the BBS with at least constructiveknowledge that infringing activity was likely to be occurring on their BBS. 4583. The Requirement of a Rental or Transfer of OwnershipThe public distribution right requires that there have been either a rental or a transfer ofownership of a copy. If material is distributed free, as much of it is on the Internet, there is nosale, rental, or lease, and it is therefore unclear whether a sale or a “transfer of ownership” hastaken place. With respect to distributions in which the recipient receives a complete copy of thework on the recipient’s computer, perhaps a “transfer of ownership” should be deemed to havetaken place, since the recipient has control over the received copy.It is unclear precisely what a “rental” means on the Internet. For example, is a downloadof an on-demand movie a “rental”? In a sense, the user pays a “rental” fee to watch the movieonly once. However, the downloaded bits of information comprising the movie are never“returned” to the owner, as in the case of the usual rental of a copy of a work. These unansweredquestions lend uncertainty to the scope of the distribution right on the Internet.4. The Right of Distribution Under the WIPO TreatiesArticle 6 of the WIPO <strong>Copyright</strong> Treaty provides that authors of literary and artisticworks shall enjoy “the exclusive right of authorizing the making available to the public of the456457458982 F. Supp. 503 (N.D. Ohio 1997).Id. at 513.Id. at 514.- 106 -