[Federal Register Volume 79, Number 135 (Tuesday, July 15, 2014)]
[Pages 41309-41310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16537]



U.S. Copyright Office

[Docket No. 2014-2]

Study on the Right of Making Available; Request for Additional 

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Request for additional comments.


SUMMARY: The U.S. Copyright Office seeks further comments on the state 
of U.S. law recognizing and protecting ``making available'' and 
``communication to the public'' rights for copyright holders. This 
request provides an opportunity for interested parties to address 
issues raised in prior written comments and during the public 
roundtable held on May 5, 2014, as well as express their views on 
recent legal developments.

DATES: Comments must be received no later than 5:00 p.m. EDT on August 
14, 2014.

ADDRESSES: All comments should be submitted electronically. To submit 
comments, please visit http://www.copyright.gov/docs/making_available/. The Web site interface requires submitters to complete a 
form specifying name and organization, as applicable, and to upload 
comments as an attachment via a browser button. To meet accessibility 
standards, commenting parties must upload comments in a single file not 
to exceed six megabytes (``MB'') in one of the following formats: A 
Portable Document File (``PDF'') format that contains searchable, 
accessible text (not an image); Microsoft Word; WordPerfect; Rich Text 
Format (``RTF''); or ASCII text file format (not a scanned document). 
The form and face of the comments must include both the name of the 
submitter and organization. The Office will post all comments publicly 
on the Office's Web site exactly as they are received, along with names 
and organizations. If electronic submission of comments is not 
feasible, please contact the Office at 202-707-1027 for special 

FOR FURTHER INFORMATION CONTACT: Maria Strong, Senior Counsel for 
Policy and International Affairs, by telephone at 202-707-1027 or by 
email at [email protected], or Kevin Amer, Counsel for Policy and 
International Affairs, by telephone at 202-707-1027 or by email at 
[email protected].


I. Background

    The Copyright Office is undertaking a study at the request of 
Congress to assess the state of U.S. law recognizing and protecting 
``making available'' and ``communication to the public'' rights for 
copyright holders, particularly in the digital age. As part of its 
review, the Office issued a Notice of Inquiry (the ``Notice'') on 
February 25, 2014,\1\ seeking comments from the public on the following 
general issues: (1) How the existing bundle of exclusive rights under 
Title 17 covers the making available and communication to the public 
rights in the context of digital on-demand transmissions such as peer-
to-peer networks, streaming services, and music downloads, as well as 
more broadly in the digital environment; (2) how foreign laws have 
interpreted and implemented the relevant provisions of the WIPO 
Internet Treaties; \2\ and (3) the feasibility and necessity of 
amending U.S. law to strengthen or clarify our law in this area. The 
Office also posed additional questions on each of these topics.

    \1\ Study on the Right of Making Available; Comments and Public 
Roundtable, 79 FR 10571 (Feb. 25, 2014).
    \2\ WIPO Copyright Treaty art. 8, Dec. 20, 1996, 36 I.L.M. 65; 
WIPO Performances and Phonograms Treaty arts. 10, 14, Dec. 20, 1996, 
36 I.L.M. 76.

    The Office received twenty-seven written comments from various 
interested parties in response to the Notice. On May 5, 2014, the 
Office held a public roundtable in Washington, DC to hear stakeholder 
views on these issues. Commenters and participants in the roundtable 
expressed a variety of views on a broad range of topics. The Notice, 
public comments, the agenda for the public roundtable, and the 
transcript of the roundtable proceedings are posted on the Copyright 
Office Web site.\3\ A video recording of the roundtable will be posted 
on the Web site when it becomes available.

    \3\ See Making Available Study, U.S. Copyright Office, http://www.copyright.gov/docs/making_available/.

    Commenters and roundtable participants generally agreed that 
current U.S. law, properly interpreted, provides rights that are 
equivalent to the making available and communication to the public 
rights required by the WIPO Internet Treaties. There was disagreement, 
however, over whether and how particular provisions of Title 17 may 
apply to various activities in the digital context. For example, 
several stakeholders argued that the unauthorized uploading of a 
copyrighted work to a shared network folder that is accessible to the 
public constitutes a violation of the exclusive right of distribution 
under 17 U.S.C. 106(3). Others disagreed, arguing that direct or 
circumstantial evidence that another user has downloaded a copy of that 
file is necessary to establish an infringement of the distribution 
right by the uploader. The roundtable discussion and initial written 
comments also highlighted issues such as whether a digital file is a 
``material object[]'' for purposes of the statutory definitions of 
``copies'' and ``phonorecords''; \4\ the relevance of legislative 
history to the construction of the distribution right; the role of 
secondary liability theories in assessing the United States' 
implementation of the relevant treaty provisions; and the use of 
evidence provided by a copyright owner's investigator in digital 
filesharing cases.

    \4\ See 17 U.S.C. 101.

    Following the Office's roundtable discussions, on June 25, 2014, 
the Supreme Court decided American Broadcasting Cos., Inc. v. Aereo, 
Inc.\5\ The case involved a service, Aereo, that used thousands of 
dime-sized antennas to allow subscribers to capture and watch 
television programs over the Internet as the programs were being 
broadcast over the air. When a subscriber selected a program to watch 
on Aereo's Web site, the system would create a subscriber-specific copy 
of the program that would then be streamed to the subscriber's computer 
or Internet-connected device. The Court held that this activity 
infringed the exclusive right of the owners of the copyrights in the 
programs to perform those works publicly.\6\

    \5\ 573 U.S. ------, No. 13-461, 2014 U.S. LEXIS 4496 (June 25, 
    \6\ See 17 U.S.C. 106(4).

    A critical aspect of the Court's decision was its interpretation of 
Title 17's ``Transmit Clause.'' That clause provides that the public 
performance right afforded to copyright owners under Section 106 
includes the exclusive right ``to transmit or otherwise communicate a 
performance . . . of the work . . . to the public, by means of any 
device or process, whether the members of the public capable of 
receiving the performance . . . receive it in the same place or in 
separate places and at the same time or at different times.'' \7\

[[Page 41310]]

Finding Aereo's activities ``substantially similar to those of the 
[cable television] companies'' that Congress intended to reach when it 
updated the public performance right in 1976, the Court held that 
``Aereo, and not just its subscribers, `perform[ed]' (or 
`transmit[ted]')'' within the meaning of the statute.\8\ The Court 
further concluded that Aereo performed copyrighted works ``publicly,'' 
notwithstanding that each transmission was made to a single subscriber 
from a personal copy, holding that ``when an entity communicates the 
same contemporaneously perceptible images and sounds to multiple 
people, it transmits a performance to them regardless of the number of 
discrete communications it makes.'' \9\

    \7\ Id. section 101 (definition of ``To perform . . . a work 
`publicly' '').
    \8\ Aereo, 2014 U.S. LEXIS 4496, at *19 (alterations added). See 
17 U.S.C. 101 (``To `transmit' a performance or display is to 
communicate it by any device or process whereby images or sounds are 
received beyond the place from which they are sent.'').
    \9\ Aereo, 2014 U.S. LEXIS 4496, at *28.

    Justice Scalia, joined by Justices Thomas and Alito, dissented, 
concluding that Aereo did not ``perform'' within the meaning of Section 
106(4). The dissenting Justices reasoned that, because Aereo's 
subscribers, not the company itself, selected the programs to be 
streamed, the resulting performances were not ``the product of Aereo's 
volitional conduct,'' and therefore Aereo could not be held directly 
liable for infringement.\10\

    \10\ Id. at *42 (Scalia, J., dissenting).

II. Request for Comment

    The Office invites further written comments on the issues raised in 
the Notice, including from parties who did not previously address those 
subjects, or those who wish to amplify or clarify their earlier 
comments or respond to issues raised during the public roundtable. In 
addition, the Office is interested in commenters' views regarding the 
Supreme Court's opinion in Aereo and how that opinion may affect the 
scope of the rights of making available and communication to the public 
in the United States. Specifically, commenters may wish to address the 
following questions:
    1. To what extent does the Supreme Court's construction of the 
right of public performance in Aereo affect the scope of the United 
States' implementation of the rights of making available and 
communication to the public?
    2. How should courts consider the requirement of volitional conduct 
when assessing direct liability in the context of interactive 
transmissions of content over the Internet, especially in the wake of 
    3. To what extent do, or should, secondary theories of copyright 
liability affect the scope of the United States' implementation of the 
rights of making available and communication to the public?
    4. How does, or should, the language on ``material objects'' in the 
Section 101 definitions of ``copy'' and ``phonorecord'' interact with 
the exclusive right of distribution, and/or making available and 
communication to the public, in the online environment?
    5. What evidentiary showing should be required to prove a copyright 
infringement claim against an individual user or third-party service 
engaged in unauthorized filesharing? Should evidence that the defendant 
has placed a copyrighted work in a publicly accessible shared folder be 
sufficient to prove liability, or should courts require evidence that 
another party has downloaded a copy of the work? Can the latter showing 
be made through circumstantial evidence, or evidence that an 
investigator acting on the plaintiff's behalf has downloaded a copy of 
the work?
    6. Please provide any additional comments or suggestions regarding 
recommendations or proposals the Copyright Office might wish to 
consider as it concludes its study.
    A party choosing to respond to this request need not address all of 
these topics, but the Office requests that responding parties clearly 
identify and separately address those subjects for which a response is 
submitted. Commenters also may address any other issues pertinent to 
the Office's review.

    Dated: July 10, 2014.
Karyn A. Temple Claggett,
Associate Register of Copyrights.
[FR Doc. 2014-16537 Filed 7-14-14; 8:45 am]