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Prior to the emergence of peer-to-peer technology, the Copyright Act's distribution right was largely dormant. Most enforcement actions were premised upon violations of the reproduction right. The relatively few cases invoking the distribution right involved arcane scenarios. During the past several years, direct enforcement of the Copyright Act against file sharers has brought the scope of the distribution right to center stage. Whereas the 1909 Act expressly protected the rights to "publish" and "vend," the 1976 Act speaks of a right to "distribute." Interpreting "distribute" narrowly, some courts have held that copyright owners must prove that a sound recording placed in a peer-to-peer share folder was actually downloaded to establish violation of the distribution right. Other courts hold that merely making a sound recording available violates the distribution right. The ramifications for copyright enforcement in the Internet age are substantial. Under the narrow interpretation, the relative anonymity of peer-to-peer transmissions in combination with privacy concerns make enforcement costly and difficult. A broad interpretation exposes millions of peer-to-peer users to potentially crushing statutory damages. Drawing upon the historical development of copyright law and the legislative history of the Copyright Act of 1976, this article explains why Congress selected the term "distribute" in its last omnibus revision of copyright law, shows unequivocally that Congress intended to encompass broadly the 1909 Act rights to "publish" and "vend" within the right to distribute, and rejects the position that Congress required proof of "actual distribution" to prove violation of the distribution right. This critical legislative history has been notably absent from treatise accounts and briefing on the liability standard in the file sharing cases, leaving courts without a compass to navigate this statutory terrain. This article traces the origins of the key legislative terms to elucidate the scope of the distribution right in the Internet age.

The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for "anything under the sun made by man" based upon one or more of the following premises: (1) the Patent Act requires such breadth and uniformity of treatment; (2) "discriminating" against any particular field of "technology" would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patent law requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter ("systemic reforms") and largely ignore reforms that would either bar particular classes of "technology" from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies ("categorical reforms"). This article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent "crisis."

The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement's campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein's embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.