Internet Content Rights Arise Upon Publication

How to determine when internet distribution of content constitutes 'publication.'

New Jersey Law Journal   January 14, 2021

By Jonathan Bick | Jonathan Bick is counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools, and the author of “101 Things You Need to Know About Internet Law” (Random House 2000).

Internet content rights may arise automatically when original internet content is published. Internet content authors and artists may enforce their rights by excluding others from copying their work or claiming it as their own pursuant to copyright laws. While said rights granted to internet content authors and artists are copyright protected, that protection does not extend to facts or ideas, though it may protect the way those facts and ideas are expressed in the internet content.

Original internet content is a work of authorship that is independently created by a human author and possesses at least some minimal degree of creativity, and may be found on the internet.

Internet publication of content can determine the value of content and in conjunction with registration (17 U.S.C. §409(8)) which court has jurisdiction over content disputes. Additionally, internet publication impacts the duration of copyright protection among other purposes including optimizing creative and ownership rights and the availability of statutory damages and attorney fees. Thus, it is important to determine when internet distribution constitutes publication.

The 1976 Copyright Act (17 U.S.C. §101) defines publication as the distribution or offering to distribute copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending, but a public performance or display of a work does not of itself constitute publication. The courts have filled in some gaps in the Act by, for example, finding that distribution by someone other than the copyright owner would result in publication. Thus, since the internet permits anyone to access copies of content, the copyright owner who posts a work online is providing the public with access to copies, and, therefore, the statutory definition indicates that the content has been published.

However, the author’s intent is critical because said intent determines whether or not a work is published. A critical aspect of publication is that the author must authorize the distribution of copies for purposes of either distribution or public performance.

The author’s intent (or lack thereof) may lead to a finding that an internet publication was not a publication for copyright purposes. For example, if an author’s content is posted on an internet site page that is password-protected, or the posted content is, then the author’s intent element cannot be assumed. Granting that said publication of the content may be subsequently proven to be intentional publication due to other facts, such as a desire to limit (but not prevent) distribution and publication. Alternatively, said content protection may have been intended to be restricted to a select group who were not authorized to distribute copies, and thus the authorized distribution was merely a limited publication, which the courts have found to be no publication at all.

Another example of the author’s intent involves performances. An author’s intent to have content be considered a performance (hence not published for Copyright Act purposes) must be viewed from an internet technical perspective. More specifically, the internet is a set of protocols that rely on the exchange of digital copies. Digital copies are “copies” within the meaning of the Copyright Act. If the technology permits public users to access (download) digital copies, then the distribution cannot be excused as mere display or performance.

Copyright protection requires that the subject matter of a copyright (i.e., the internet content in this case) be fixed. More specifically, a creative idea must be locked in a permanent state. It should be noted that both Copyright Office and the courts have found that digital versions of content are stable enough to be perceived as fixed, even if the aid of a machine are considered works for Copyright Act purpose.

The fact alone that someone may, without the authority of the copyright owner, reproduce or distribute a work, generally does not affect the determination of publication. Thus, Internet distribution alone does not automatically result in publication for copyright law purposes.

The U.S. Copyright Office found (Compendium 3rd§1008.3(A)) that “any form or dissemination in which a material object does not change hands… is not a publication no matter how many people are exposed to the work,” which erroneously suggests that digital copies cannot result in publication. However, subsequently the Compendium confirms that physical exchange is not required, when it states that a book is published when copies of the work are distributed online.

Additionally, the court inGetaped.com v. Cangemi(188 F. Supp. 2d 398) found that whether the code was displayed or copied is critical for copyright purposes. In theGetapedcase, plaintiff Getaped.com created a website to sell Go-Ped® brand motorized scooters (the “Getaped site”). Plaintiff spent 400 hours or more over an eight-week period designing and creating the source code for the Getaped site, which went “live” on the internet in December 1999. The Getaped site had several modifications. Plaintiff registered one of the modified versions in 2000. The defendants copied the Getaped website by posting identical source code at their own sites, and Getaped claimed that the replication of the Getaped site at defendants’ sites infringed its copyright and diverted traffic and sales from its site.

The court found that when an internet user can view a work but not make a copy, the work is merely displayed and not published. However, when an internet user can attain a copy, it is published. More specifically, the court reasoned that when an internet user accesses an internet site page, the user not only views the page but also views and copies the code used to create it. Thus, from a legal perspective when an internet user accesses an internet page, that user obtains the capacity to make a copy of that webpage, a copy that is, in fact, indistinguishable in every part from the original.

Hence, when a website goes live, the content author loses duplication and/or further distribution control of the content. An Internet site page in this respect is indistinguishable from any Internet posted content because it may all can be freely copied. Consequently, when an internet site goes live, it is distributed and for copyright purposes is “published.” This finding is consistent with100 years of publication precedent thought authorized by the author copyright owner (or lack thereof) and may result in a contrary outcome. Nevertheless, it is usually fair to assume that internet distribution by the author (or the subsequent copyright owner) is determinative that the work has been published.

Some courts such asKernel Records Oy v. Mosley, 694 F.3d 1294 (11th Cir. 2012), andMcLaren v. Chico’s FAS(No. 10-cv-2481 — S.D.N.Y. Nov. 9, 2010) have considered the issue as to whether distribution via the internet per se constitutes publication and have found some exceptions. However, said courts have not weakened theGetapedcourt’s rationale. At most, these cases merely questioned in dicta whether internet distribution always amounts to publication

Consequently, both the statutory definition and the overwhelming weight of copyright precedent support the finding that when original content has been posted by the author on a publicly available internet site, that the content has been published. Therefore upon internet publication, the published content has been published as a matter of copyright law, barring lack of intent by the author, if someone other than the author (or copyright owner) posted the work, or if the content could only be viewed (and not copied).