10

By reading services I mean services that make print materials accessible for eligible persons and provides access to this content by means other than radio broadcasting and using specialized receivers. Examples of such services are NFB Newsline, NLS BARD, the Braille Institute's Telephone Reader Program, etc.

I understand that these programs make copyrighted material available exclusively to people who can prove that they have eligible disabilities (i.e., they have to register and use secret credentials to listen to the content).

It seems though that the copyright law of the U.S. does not explicitly permit this use case, and I base this on what I have found so far:

17 U.S. Code § 110(8)

Paraphrasing:

[It is not infringements of copyright when a] performance of a nondramatic literary work [is transmitted] through the facilities of:

This section specifically refers to radio reading services that have a long history in the U.S., but none of the cited sections include phone systems or mobile applications.

17 U.S. Code §121 & 17 U.S. Code §121A

NOTE: Mentioning these two together as the latter is the an extension of the former with regards to jurisdiction of member countries of the Marrakesh Treaty.

Copyright limitations in §121 and in §121A apply to copies and phonorecords where

  • “Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.

  • “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.

Both terms are defined as "material objects" which I would interpret as palpable, physical objects such as the specialized equipment of the NLS (i.e., USB cartridges and talking book machines) but mere files (e.g., digital audio recordings) would not belong to this category. This answer also supports this notion.

Unless, the alternate interpretation of "files stored on a physical storage device" (which is always the case) is also acceptable; this way,

  • the service's servers store the files on their hard drive (or other storage device)
  • the user usually downloads it to a storage device (e.g., hard drive, USB stick)
  • the mobile app that caches the file from the service's server is a non-physical container similar in function to the USB cartridges (as in specialized access)

The reasoning in the first two items seem week, but I would compare them to when someone borrows a book from a library and reads it in public.

Please educate me if I'm misinterpreting the above parts of the U.S. code and/or missed relevant sections of it that pertain to these use cases.

Improve this question
6
  • 1
    I’m surprised you accepted the answer because it doesn’t seem to explain why audio books made as part of NLS are non-infringing. I’m not sure, but what I’ve looked up suggests that the exclusion from infringement for materials for the blind and dyslexic may not be spelled out in title 17 but may instead be located in the code related to the establishment and expansion of the National Library Service (NLS). It also looks like infringement by the NLS may have become an issue after the passage of the DMCA, and may or may not have been fixed. I’ll leave to others with actual knowledge to clarify.
    – Todd Wilcox
    Nov 1, 2021 at 2:01
  • 1
    @Todd Wilcox NLS and similar services are IMO clearly covered by 17 USC §121, which is linked and quotes i8n the question. The only question asked, and the only issue I can see is whether the digital fles used by such services are "copies" or "phonorecords" under the law, which requires that they be embodied in a "materiel object". I explained the sources which convince me that they are, and showed how courts have treated them as such. As to "why", the main reason is that if such files were not copies, US copyright law would fall apart for most digital works [...]
    – David Siegel
    Nov 1, 2021 at 2:49
  • 1
    @Todd Wilcox [...] If courts took the position that computer files were not copies, and therefore copying them was not infringement, the pressure from all sides would be such that the law would promptly have been changed to remove "materiel" or clearly define it so that such files were included. But her on law.se we explain what the law is, not why legislators chose to make it that way. The accepted interpretation by US courts of Title 17 -- that digital files are copies or phonorecords, and sufficiently materiel for the law to apply --is clear, an that is the on-topic answer here
    – David Siegel
    Nov 1, 2021 at 2:54
  • 2
    @Todd 17 USC 121 says "it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work ... if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons." The question asked if what these services distributed are "copies or phonorecords". I said they are. If you have some other reason why Sec 121 would not cover these services that would be a separate question, preferably linked to this one.
    – David Siegel
    Nov 1, 2021 at 4:17
  • 1
    @DavidSiegel Aha. What I didn’t understand was the question. That’s why your answer didn’t seem like an answer to me.
    – Todd Wilcox
    Nov 1, 2021 at 12:05

1 Answer 1

Reset to default
10

Copyright law treats computer files containing text as "copies" and computer files containing sound as "phonorecords". Indeed it must, otherwise there would be no copyright protection for ebooks and for downloadable music. Thus, I would take 17 U.S. Code §121 to apply. The word "material" in copyright law has been held to include "stored in electronic form on any storage device" so that the key requirement for an initial copyright, that the work be "fixed in a tangible form" or "fixed in any tangible medium of expression" is satisfied by a computer file, see 17 USC 102

17 USC 121 reads:

it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work ... if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

Note that the page "Copyright and Digital Files" describes computer files recorded in a computer or on disk as "copies" as in deed does 17 USC 117 This establishes that such files are copies, and thus consist of "materiel objects".

The official US copyright office page on "Can I Use Someone Else's Work? Can Someone Else Use Mine?" reads:

Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law. (emphasis added)

Copyright Office Circular 1: "Copyright Basics" reads:

A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.

A computer file is petty clearly "sufficiently permanent" for this purpose.

Also consider Google LLC v. Oracle America, Inc 886 F. 3d 1179 As this web page reports:

In a 6-2 decision, the Supreme Court has ruled that Google's use of Oracle's software code in developing the Android operating system constituted a fair use under §107 of the Copyright Act.

The use would not have been fair use unless the code was protected by copyright, and the code almost surely existed only in the form of computer files. Thus the US Supreme Court has treated computer files as "materiel objects" for purposes of copyright law. (Note also that the use was declared to be infringement unless fair use applied, which leads even more directly to the same conclusion.)

Improve this answer
4
  • 3
    Re Oracle v. Google: Quoting from the very page you linked to: "To decide no more than is necessary to resolve this case, the Court assumes for argument’s sake that the copied lines can be copyrighted..." - in other words, SCOTUS very deliberately did not take a position on copyrightability.
    – Kevin
    Nov 1, 2021 at 14:49
  • 1
    @Kevin Perhaps that was not the best case to cite then, I am reasonably sure the Court and the courts have long since held that such files can be protected by copyright. Indeed 17 USC 117 (The exception for archival copies of software)does not make sense if such files are not protected by copyright -- indeed the whole open source movement and particularly copyleft licenses simply do not work if there is no copyright protection for digital files stored on disk or tape or in a USB or on a cloud server.
    – David Siegel
    Nov 1, 2021 at 15:21
  • 1
    I think you're going to have a hard time finding a court case expressly stating that files can be copyrighted, because it's obvious from the phrase "any tangible medium of expression, now known or later developed" in 17 USC 102. A hard drive (or any other computer storage device) is clearly a "tangible medium" unless you completely ignore the meanings of words.
    – Kevin
    Nov 1, 2021 at 16:31
  • 1
    @Kevin I agree that the question is obvious. What I think i might find is a copyright case where the work infringed (or allegedly infringed) and the infringing work are both computer files, so it is clear that the court is treating such files as "copies". I suppose the idea of the question was that individual computer files are not "tangible", although a hard drive is. The OP seems to have accepted that such files are copies, and you and I seem in agreement, so i am not sure there is reason to find a better case to cite.
    – David Siegel
    Nov 1, 2021 at 16:40

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .