Monday, November 12, 2012

Nimmer and Distribution

For those of us who first studied Copyright Law in the 1980s there is no more venerable name than Melville Nimmer.  Professor Nimmer's treatise Nimmer on Copyright is the most comprehensive guide to all questions of copyright law, large and small. I still refer to my 10 volume set of the treatise religiously.

 What is perhaps even more significant about Nimmer is that even though Melville Nimmer himself died in 1985, his work has been continued by his son David Nimmer since that time. .  The collective oracle is always simply referred to as "Nimmer".

 According to a recent article by Devlin Hartline on the web site Copy Hype, David  Nimmer has recently changed his position on what the exclusive right "distribution" means under the Copyright Act.  Apparently, up until this year, Nimmer took the position that distribution required an "actual dissemination of works to the public" but now he defines "distribution" as simply  as "making available" the copyrighted work to the public.

Nimmer's original interpretation was important because it was this interpretation the Court of Appeals relied on to give Jammie Thomas‑Rasset a new trial in her well-known copyright infringement case with the RIAA (i.e. since the plaintiff record companies could not prove that anyone actually downloaded the songs she had posted, the court did not believe that actual distribution could be shown).  Although the ruling ultimately did not help Thomas‑Rasset it did give encouragement to others who are fighting similar cases. Somehow though, it did not seem right. 

However a law professor named Peter S. Menell apparently convinced Nimmer that the legislative history of the 1976 Copyright Act clearly demonstrated that Congress meant to make "making available" identical to "distribution". I am pleased to hear this on several levels. First, from a practical standpoint, it always seemed to me that “distribution” should be defined as ‘making available’. This made sense in the brick and mortar world and it makes more sense in the internet world.

Perhaps more importantly, I am comforted to see anybody, be they an academic or a politician change their position based upon the facts, especially those facts contained in legislative history. It is a sign that intelligent and thoughtful analysis has not been completely replaced by blind adherence to dogma. It is also a sign that our Copyright Act remains flexible and adaptable to the constant march of technological change. This is a good thing.

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