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I have long been under the impression that making one's own copyrightable work available on the Internet for free does constitute publication for the purposes of copyright law in most/all Western jurisdictions.

But now reading through the US Copyright Law makes me not so certain anymore (emphasis added):

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly” means—

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

A piece of work available on the Internet for free is most certainly not being sold, rented etc. At the same time it is being transmitted and displayed. Is there any viable argument (or court decision) that rebuts the conclusion that a free internet publication is no publication for the purposes of US copyright law but public performance/display?

  • Since anyone who downloads a work, or indeed opens a site makes a copy of all text there, i would think that posting openly constitutes "The offering to distribute copies or phonorecords to a group of persons " but I don't know of caselaw to this effect. – David Siegel Feb 20 at 14:07
  • Thre was a question here recently which said that US courts had held that works posted to web sites with world wide availability had been simultaneously published in the US and abroad, (which afffects copyright suits) but it didn't cite specific cases I think. – David Siegel Feb 20 at 14:09
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“Publication” is the distribution of copies or phonorecords of a work to the public by ... lending.

You have put in your website so I can borrow it to read it - sounds like lending to me.

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