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'Making Available' Files on Peer 2 Peer Network Insufficient to Demonstrate Distribution |
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An Internet user who ripped music from compact discs and made the files available for sharing on the Kazaa network is not liable for unauthorized distribution of copyrighted works under Section 106(3) of the Copyright Act absent a showing of actual distribution of an unauthorized copy to a member of the public, the U.S. District Court for the District of Arizona ruled April 28. Atlantic Recording Corp. v. Howell, [D Ariz, 2008].
Denying a motion by several record companies for summary judgment, the court concluded that merely "making available" a digital file for copying does not constitute distribution in violation of a copyright owner's exclusive rights. The court rejected the argument that an "offer to distribute" constitutes publication and, thus, infringement.
The court also concluded that at the summary judgment stage it was inappropriate to resolve the question of whether the user had made the recordings available in face of the claim that someone other than the defendants were responsible for putting the relevant files in the "shared" folder.
Actual Distribution Required to Infringe. Applying Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F3d 199, 43 USPQ2d 1299 (4th Cir 1997), Judge Neil V. Wake first rejected the argument that the mere placing of the files in the Kazaa shared files folder constituted distribution.
After reviewing a series of cases on the question of whether making works available on a file-sharing network constitutes distribution, the court said it agreed with "the great weight of authority that §106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public." Evidence that a defendant "made available" a copy of the work showed only attempted distribution, which is not enumerated in the Copyright Act as one of the exclusive rights of a copyright holder, the court said.
The court then concluded that although "distribution" under the Copyright Act constitutes "publication," not all publication is distribution, rejecting the record companies' argument that they are synonymous.
Finally, the court concluded that there was not sufficient evidence in the record regarding the architecture of the Kazaa system to conclude at this stage whether a Kazaa user who makes files available "distributes an unauthorized copy (direct violation of the distribution right), or simply provides a third-party with access and resources to make a copy on their own (contributory violation of the reproduction right)." |
