S. 167 impacts interpretation of distribution right
One aspect of S. 167, the Family Entertainment and Copyright Act, which has cleared both houses, is that it may impact the scope of the exclusive distribution right under copyright law. The bill would amend Section 506(a) of the Copyright Act to add the following to criminal infringement:
“by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution”
Whether “making available” over a public computer network is the same thing as “distribution” is an open question under the law, because “distribution” is not defined in the Copyright Act, and the exclusive right of distribution under Section 106(3) is enumerated as
“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”and does not expressly include the concept of “offering” a work for distribution.
In Hotaling v. Church of Jesus Christ of Latter-Day Saints, a library made unauthorized copies of the church’s copyrighted works available to the public. There the Fourth Circuit found that this was a violation of the distribution right, based on the library’s listing the work in its index and making it available to the public.
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