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Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

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April 26, 2004

It's All About the Distribution - Free Speech, Telecomm and Copyright

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Posted by Ernest Miller

I've said it before. I'll say it again. When it comes to information, it is all about the distribution.

Last week, Ed Felten pointed out a great point about the important nexus between copyright law and communications regulation (Copyright and Cultural Policy). Felten was referencing James Grimmelmann's excellent LawMeme write-up on Seton Hall Law School's recent symposium, Peer to Peer at the Crossroads [PDF] (Conference Report: Peer-to-Peer at the Crossroads). Read the whole report, but the presentation that struck Felten's fancy (and mine) was UVa's Tim Wu: Copyright's Communication Policy [PDF]:

This article suggests that the main challenge for 21st century copyright are not challenges of authorship policy, but rather new and harder problems for copyright's communications policy: copyright's poorly understood role in regulating competition among rival disseminators. [emphasis in original]

Read the whole thing. It is a rich look at an extremely valuable way of considering copyright law.

Wu calls them disseminators, I call them distributors, but we both recognize their importance to copyright law. If, as I argue, copyright is about distribution, then it really makes sense to view copyright as communications policy (which is also about distribution) (It's All About the Distribution, Stupid).

I go even further, however, and claim that important elements of the First Amendment are also about distribution (It's Freedom of the Press, Stupid and Freedom of Speech as Distribution is a Good Thing).

Bonus: Check out the figure on page 11 of Wu's paper. Reminiscent of a layered protocol, don't you think?

Comments (9) + TrackBacks (0) | Category: Big Thoughts


1. Joseph Pietro Riolo on April 27, 2004 5:33 AM writes...

While it is true that copyright has effects on
communication, it is still a mistake to think
that copyright is all about distribution or

Copyright is still about authorship. When
authorship is combined with exclusive rights,
what we have is called ownership. Ownership
then has effects on how the author's works
can be distributed or communicated. In
other words, the author as ownership has
control over people's freedoms of speech
and press - people's communication.

This is important because if we focus on
the distribution and communication as the
only reasons for copyright, we inadvertently
concede that authors can have perpetual
rights and that it is up to society to
take the responsibility to regulate how
much control these authors can have on
communication such as compulsory license.

Copyright is still about the ownership in
knowledge and the effects that it has on
communication is only secondary to ownership.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions
in this comment in the public domain.

Permalink to Comment

2. Ernest Miller on April 27, 2004 9:18 AM writes...

You mistake my point. Yes, there is authorship, just as in many communications issues someone has to own the cable, satellite, antenna or what have you. Nor is the argument that copyright is about distribution lead to the conclusion that copyright shouldn't be limited in time.

I don't believe you can own information.

Permalink to Comment

3. Terry Steichen on April 27, 2004 11:22 PM writes...

I think there's some confusion here by using the semi-slang "copyright is about xxx".

Ernest says you can't own information. If by information he means facts, he's clearly right. If he means expression, he's clearly not right.

But who's actually arguing these (strawman?) points?

Copyright is just that, a "right" of the creator of an expression to control it's use. What's the point of bringing in distributors? They don't hold any copyright rights unless granted them by the creators.

Am I missing something here?

Permalink to Comment

4. Ernest Miller on April 28, 2004 12:06 AM writes...

As for ownership of information ... there is a lot going on there. It has very little to do with the idea/expression dichotomy. In my view, you don't "own" information, you have the right to control certain communications of information. There is an important difference there.

The right being controlled is, at the base, the right of distribution. Whether the creator retains that right or gives the right to another is unimportant.

Permalink to Comment

5. Terry Steichen on April 29, 2004 2:32 PM writes...

Again, the logic of what you say depends on what you mean by "information." If that term is intended to include not just the factual content but its expression, then, in a real sense, the copyright holder does, for all intents and purposes, "own" it.

And certainly, the exercise of this "ownership" usually involves control of how/whether it is published (which is certainly a form of distribution).

Now I'm a bit puzzled by your view that there is "an important difference" between such ownership and exercising such control of distribution. Could you elaborate a bit?

Permalink to Comment

6. Joseph Pietro Riolo on May 1, 2004 8:38 PM writes...

In response to Ernest Miller's comment:

Needless to say, we have a disagreement over the
focus of copyright. I still maintain that the
core of copyright is still the right of reproduction.
The right of distribution is always subordinate
to the right of reproduction.

Eliminating the right of reproduction as you suggested
in your article titled "Taking the Copy Out of Copyright"
will allow the following two scenarios to happen:

Scenario A: Person A buys a DVD movie from a
store legally and lawfully. He takes it to
his home and makes a copy of it for his
personal use. Person A gives the original DVD movie
to his friend (Person B) as a birthday gift.
Person B makes a copy of it for his personal
use. Person B gives the same original DVD movie
to Person C as a farewell gift. Person C copies
the DVD movie to his computer for his personal
use. Person C then gives the original DVD movie
to Person D and so on.

In that scenario A, Persons A, B, C, D, and so
on do not violate the author's right of distribution
because all they did is to pass on the only single
original DVD movie. They did not distribute the
copies that they made.

Scenario B: I think that I have more than 100
VHS movies. If the authors and artists do not
have the right of reproduction, I can easily
copy these 100 VHS movies to DVD or any other
format as long as I do not distribute the
new formats to other people.

These two scenarios are the reason why the authors
and artists are granted the right of reproduction
even if the copies are not intended for distribution.

(Your article overlooked one point that is critical
to the understanding of copyright. In old days,
the copyright starts when a work is published,
not when it is created or copied. In the old
days, if an author writes a story and makes five
copies for his close critics with the understanding
that these five copies are not intended for
publication or distribution, he owns the perpetual
copyright in this unpublished story. Once he
publishes the story, the perpetual copyright is
replaced by the federal copyright. Nowadays,
copyright starts at the moment when an author
creates a work regardless of whether he intends
it to be distributed, published, or copied. I
think that this is the reason why the rights
under the old copyright law are not similar to
the rights under the current copyright law.)

There is nothing Ptolemaic about copy-centrism.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions
in this comment in the public domain.

Permalink to Comment

7. Ernest Miller on May 1, 2004 9:02 PM writes...


First, could you please format your comments so that they use the whole of the comment field and don't have line breaks every 40 characters or whatever?

I don't think that Scenario A is that big a deal. But the key question is when does the harm accrue? Does the harm accrue when the copy is first made? No. The harm you claim occurs when the copy is made and then distributed. It is the distribution that creates the harm. The reproduction is merely a necessary but not sufficient element.

By myself, sitting lonely at home, making copy after copy of a work ... what harm has come to the copyright holder?

Which brings me to Scenario B. Why is format shifting wrong? You've paid for access to the work, why not shift it to a better format? Should you have to pay the copyright holder if you buy a better television?

Permalink to Comment

8. Joseph Pietro Riolo on May 2, 2004 9:28 AM writes...


You can't use the economic harm as the final arbitrator over the uses of the copyrighted works. This is not what the majority of authors and artists want. They want to have as much control as they want over their works. As an excellent illustration of that point, they want to have rights of attribution and integrity (they don't have these rights; only some visual artists) even though there is no economic interest in these rights. However, they can impose these restrictions on people through the right of reproduction.

Scenario A can be harmful when there are 1,000 people like Person A. Then, there will be 1,000 people like Person B. For each time that these 1,000 people pass their original copyrighted works to the next 1,000 people, authors and artists lose the potential sale of 1,000 copies of their copyrighted works.

Regarding Scenario B, authors and artists simply don't want you to do the format shifting. That is all. Although I agree with your point that it is absurd for them to have the control over the format shifting, we are minority and in this
country (U.S.), it's the majority that rules. Perhaps over the time, more authors and artists may think that the users have the right to format shifting but that is unlikely.

Some authors and artists do not like Section 121 (in U.S. Copyright Law - it allows blind people or people with disabilities to convert the original format of a copyrighted work to a different format like Braille) because they get nothing from the format shifting.

While we are on the topic of format shifting, you always have the opportunity to exercise your freedom of changing the format of my comments.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this comment in the public domain.

Permalink to Comment

9. Pete on August 4, 2004 6:52 AM writes...


The problem with copy-centrism is that when a work is in digital form it is impossible to experience it without making a copy. There is a general agreement that transitory bits in the wires are not copies, that (e.g.) long-lived temporary copies of web pages in the browser cache aren't infringing copies, and so on. The entire copyfight is over where the boundary of when it is "reasonable" to make a copy. Simplistic "all copying is controlled by the author" leads to absurd results.

we are minority and in this country (U.S.), it's the majority that rules

There are far more filesharers than authors, but they're much less organised. I think a majority of people favour format shifting, being able to record TV on their VCR, and so on.

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