Law 633


Statutory Drafting Exercise #2

Due Friday 17, February at 6:00 pm

This assignment is mandatory but ungraded

(We will discuss the assignment in class on Wednesday, February 22)


       Section 109(a) of the copyright statute provides that the owner of any lawfully made copy or phonorecord of a copyright work is entitled to sell, loan, or otherwise dispose of the possession of that copy or phonorecord. The Copyright Office and courts have concluded that section 109 does not permit the owner of a digital copy or phonorecord to transfer the possession of that copy or phonorecord, because doing so would require the creation of one or more digital copies or phonorecords, and section 109 is cast as a limitation on the § 106(3) distribution right but not the § 106(1) reproduction right. (See Capitol Records v. Redigi (p. 356)).

       Decide whether (and, if so, under what circumstances) the section 109(a) right to dispose of the possession of a copy or phonorecord should apply to digital copies or phonorecords either downloaded to a personal computer or device or stored in online in the cloud. Draft a new subsection 109(f) that will unambiguously accomplish that result. Assume that the rest of section 109 will remain unchanged. You may work alone or in teams of two, three, or four.

        Your amendment must reflect actual statutory language. Do not explain what it is you are trying to do -- the effect and intent of your amendment should be clear from the statutory language that you propose. You should anticipate that the language of your amendment may be both publicly performed and publicly displayed in class, and that one or more of your classmates will be asked to explain what your amendment will accomplish, and then criticize its weaknesses and praise its strengths.

        Do not include your name(s) anywhere on the assignment. Make up an arbitrary five-digit number for your amendment. Type the number at the top of the page. Save your assignment as a pdf file under a filename of your-five-digit-number.pdf. (If you have named your assignment 12345, your should save it as a pdf file under the name 12345.pdf.) Upload a copy of your pdf file as your answer to the Qualtrics survey question posted at Your upload will be anonymous. Print out a copy of your assignment and bring it with you to class on Wednesday, February 22. If you are working in a team, make sure that every member of the team brings a copy to Wednesday's class. You should each save another copy for your own reference.