Copyright holders own the exclusive right to distribute copies of their works to the public under §106(3) of the Copyright Act. But what does it mean to “distribute” a work on the Internet? Must copies actually be created on other users’ computers, or is it enough that the defendant offer or make them available for download? Earlier authority appears inconsistent or confused on the issue. But, subject to some qualifications discussed below, each of three district court cases decided this Spring that making copyrighted works available for possible download through peer-to-peer networks is by itself not enough to violate the distribution right.

The Copyright Act does not define “distribution,” but some authority has supported the view that it encompasses offers or makes works available, regardless of whether copies are actually disseminated. In Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997), for example, the Fourth Circuit held that a library distributed a copyrighted work when it added the work to its collections, listed the work in its catalog and made the work available for borrowing or browsing. In A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001), the Ninth Circuit stated, “Napster users who upload file names to the search index for others to copy violate plaintiff’s distribution rights.” However, the somewhat ambiguous language of Napster was likely dicta and appears to have been at least indirectly repudiated by the Ninth Circuit’s later decision in Perfect 10 v. Amazon, as noted below. In the view of some courts, Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985), equates the term “distribute” with “publication”; and the Copyright Act in turn defines publication to include the “offering to distribute a group of persons for purposes of further distribution.” Over the past decade, many other cases have gone both ways on the issue.

In the first of the current cases, London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008), the court squarely held that merely listing music files as available for downloading on a P2P network did not itself infringe the distribution right. Distinguishing Harper & Row, the court held that although “publication” has been given a broad interpretation, all publications were not necessarily distributions. The context of the decision was an effort to learn the identity of the individuals who had made works available on a P2P network. Notwithstanding certain qualifications, and notwithstanding its limiting interpretation of the distribution right, the court ruled that plaintiffs had sufficiently alleged actual distribution for them to be entitled to proceed.

The second case, Elektra Entertainment Group, Inc. v. Barker, 551 F. Supp. 2d 234 (S.D.N.Y. 2008), was decided the same day as London-Sire. Elektra had alleged that defendant “infringed Plaintiffs’ exclusive rights of reproduction and distribution by downloading, distributing, and/or making available copies of protected sound recordings using an online media distribution system,” namely, the Kazaa peer-to-peer file sharing network. The defendant moved to dismiss in part based on Elektra’s allegation that defendant “ma[de] the Copyrighted Recordings available for distribution to others” failed to state a claim of infringement. The court ruled (contrary to London-Sire’s holding) that distribution and publication were co-terminous. But in light of the statutory definition of publication, the court held that merely “making [copyrighted works] available” did not violate the distribution right. Rather, plaintiffs would have to prove defendant “offer[ed] to distribute copies or phonorecords to a group of persons for purposes of further distribution.”

Whatever the sufficiency of the complaint on this point, it is doubtful whether it can usually be shown that one who makes recordings available to a P2P network contemplates that copies will be obtained for further distribution, as opposed to personal use.

Just one month later, in Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976 (D. Ariz. 2008), another court followed the approach of London-Sire. The Howell court relied in part on the analysis in Perfect 10 v., Inc., 508 F.3d 1146 (9th Cir. 2007), which held that the conclusion that a “distribution requires an ‘actual dissemination’ is consistent with the language of the Copyright Act.” After reviewing the large body of law on this issue, the Howell court agreed with what it deemed “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. … Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”

The fight over the scope of the distribution right in the P2P context is far from over, but these recent cases may suggest a limiting trend. However, given that none of the rulings represented a final, appealable decision, it will likely be some time before these issues reach the various appellate courts for more definitive guidance.