THE DISTRIBUTION RIGHT•The distribution right is 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.” (17 U.S.C. §106(3))•“Distribution” is not defined in the Act.•In many ways, the distribution right is a holdover from copyright’s origins as a printing monopoly grant.•Unlike the reproduction right, the distribution right tends to involve exact copies.

Capitol Records, Inc. v. Thomas579 F. Supp. 2d 1210 (D. Minn. 2008)

• The “first sale doctrine” is a limit on the distribution right:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. (17 U.S.C. §109(a))

• As technology has advanced, copyright owners have argued that rental or lending of certain kinds of works simply facilitates unauthorized copying.

• As a response, Congress added §109(b), amending the first sale doctrine to state that owners of phonorecords and computer programs could not “for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of” phonorecords or computer programs ‘by rental, lease, or lending.”• This does not, however, apply to nonprofit libraries, or to the

lending of machines (like computers) in which the software is embodied.• The motion picture industry supported a complete ban on video

rentals, but (likely to their advantage) did not prevail in this, and have instead introduced copy-protection systems in their DVDs.• Congress has shied away from introducing amendments for

“electronic transfer” as current technology for this requires reproducing the work in question.

THE RIGHT TO PREPARE DERIVATIVE WORKS•17 U.S.C. §101: A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship is a “derivative work.”

• If they include original, copyrightable elements, derivative works may constitute copyrighted works themselves. • But, as a matter of definition, derivative works also require

copying from some preexisting work, which may have a copyright of its own. •Note that unlike with the reproduction right, the derivative work

need not be “fixed in a tangible medium of expression.”

Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc.150 F.3d 132 (2d Cir. 1998)

Warner Bros. Entertainment, Inc. v. RDR Books575 F. Supp. 2d 513 (S.D.N.Y. 2008)

Mirage Editions, Inc. v. Albuquerque A.R.T. Company856 F.2d 1341 (9th Cir. 1988), cert. denied, 489 U.S. 1018 (1989)

Lee v. A.R.T. Company125 F.3d 580 (7th Cir. 1997)

Lewis Galoob Toys, Inc. v. Nintendo of America, Inc.964 F.2d 965 (9th Cir. 1992), cert. denied, 507 U.S. 985 (1993)

Micro Star v. FormGen Inc.154 F. 3d 1107 (9th Cir. 1998)

Note on Linking & Framing

• HTML coding allows for web designers to do a number of things, including:• Link to interior locations of websites, bypassing the home page for

the site (“linking”); and• Inset content from one or more web pages into another

(“framing”).• Copyright owners of web content have repeatedly tried to prevent

acts of linking and framing, and scholars have disagreed as to whether linking and framing might violate the derivative work right.