Some distributions will clearly be “public,” such as the posting of material on a Usenet
newsgroup, and some will clearly not, such as sending e-mail to a single individual. Many other
Internet distributions will fall in between. However, one might expect courts to treat distribution
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 Playboy
Enterprises, Inc. v. Hardenburgh,^745 held the defendant operators of a BBS directly liable for
infringement of the public distribution right by virtue of making available photographs to
subscribers of the BBS for a fee, many of which were copyrighted photographs of the plaintiff
Playboy Enterprises. The court’s basis for finding liability was derived principally from the fact
that the defendants had a policy of encouraging subscribers to contribute files, including adult
photographs, to an “upload file” on the BBS and the defendants’ practice of using a screening
procedure in which its employees screened all files in the upload file to remove pornographic
material and moved them into the generally available files for subscribers. These facts led the
court to conclude that the defendants were active participants in the process of copyright
infringement.
With respect to the requirement that the distributions be “to the public” in order to
infringe 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.”^746
The court also concluded that the defendants were liable for contributory infringement by virtue
of their encouraging of subscribers to upload information to the BBS with at least constructive
knowledge that infringing activity was likely to be occurring on their BBS.^747
- The Requirement of a Rental or Transfer of Ownership
The public distribution right requires that there have been either a rental or a transfer of
ownership of a copy. If material is distributed free, as much of it is on the Internet, there is no
sale, rental, or lease, and it is therefore unclear whether a sale or a “transfer of ownership” has
taken place. With respect to distributions in which the recipient receives a complete copy of the
work on the recipient’s computer, perhaps a “transfer of ownership” should be deemed to have
taken 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 download
of an on-demand movie a “rental”? In a sense, the user pays a “rental” fee to watch the movie
only 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 unanswered
questions lend uncertainty to the scope of the distribution right on the Internet.
(^745) 982 F. Supp. 503 (N.D. Ohio 1997).
(^746) Id. at 513.
(^747) Id. at 514.