The court therefore granted summary judgment to Yandex to that extent. The court then ruled
that the case would proceed to trial with respect to liability pertaining to evidence submitted by
Perfect 10 of 23 links that connected to U.S. web sites.^642
D. The Right of Public Distribution
Section 106 (3) of the copyright statute grants the copyright owner the exclusive right to
distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer
of ownership, or by rental, lease, or lending. Thus, to implicate the right of public distribution,
three conditions must obtain: (a) a “copy” must be distributed; (b) the distribution must be to the
“public”; and (c) the distribution must be by sale, rental, lease, lending or “other transfer of
ownership.”
- The Requirement of a “Copy”
Whether transmissions of a work on the Internet implicate the public distribution right
turns in the first instance on whether there has been a distribution of a “copy” of the work. The
broadcasting and cable industries have traditionally treated broadcasts and cable transmissions as
not constituting distributions of copies of a work. With respect to Internet transmissions,
however, if a complete copy of a work ends up on the recipient’s computer, it may be easy to
conclude that a “copy” has been distributed. Indeed, to remove any doubt from this issue, the
NII White Paper proposed to include “transmission” within the copyright owner’s right of
distribution,^643 where transmission is defined essentially as the creation of an electronic copy in a
recipient system.^644
It is less clear whether other types of transmissions constitute distributions of “copies.”
For example, what about an artistic work that is transmitted and simultaneously performed live at
the recipient’s end? Although the public performance right may be implicated, has there been a
distribution of a “copy” that would implicate the right of distribution? Should it matter whether
significant portions of the work are buffered in memory at the recipient’s computer? Many of
these distinctions could be rendered moot by the potentially broader right of “communication to
the public” contained in the WIPO treaties discussed below, were that right ever to be expressly
adopted in implementing legislation in the United States (the DMCA does not contain such a
right).
Even if a “copy” is deemed to have been distributed in the course of an Internet
transmission of an infringing work, difficult questions will arise as to who should be treated as
having made the distribution – the original poster of the unauthorized work, the OSP or BBS
(^642) Id. at 1157-58 & n.3.
(^643) The copyright statute currently defines “transmission” or “transmit” solely in reference to performances or
displays of a work. The NII White Paper does not, however, argue for removal of the requirement that an
offending distribution be one to the “public.” NII White Paper at 213-15.
(^644) NII White Paper at 213. Appendix 1 of the NII White Paper proposes the following definition: “To ‘transmit’ a
reproduction is to distribute it by any device or process whereby a copy or phonorecord of the work is fixed
beyond the place from which it was sent.” Id. App. 1, at 2.