Advanced Copyright Issues on the Internet - Fenwick & West LLP

The plaintiffs argued that the requirement of a transmission of a material object in orderto find a violation of the distribution right was no longer viable in view of the recently enactedArtists’ Rights and Theft Prevention Act of 2005 (the ART Act). 407 The plaintiffs cited Section103(a)(1)(C) of the ART Act, codified at 17 U.S.C. § 506(a), which provides criminal sanctionsfor any person who willfully infringes a copyright by the distribution of a work being preparedfor commercial distribution, by making it available on a computer network accessible tomembers of the public. The plaintiffs interpreted this provision as imposing criminal liability onany person who willfully makes an unauthorized copy of a copyrighted work available on apublicly accessible computer network while that work is being prepared for commercialdistribution, and argued that Congress must have understood civil liability for copyrightinfringement to be equally broad. 408The court rejected this argument, noting that the ART Act did not amend Section 106(3)of the copyright statute, and in any event Section 103(a)(1)(C) of the ART Act makes clear thatwillful copyright infringement and making the work available on a computer network areseparate elements of the criminal offense. Hence, the mere making available of an unauthorizedwork on a computer network should not be viewed as sufficient to establish a copyrightinfringement. 409 Accordingly, the court ruled that the defendants were entitled to summaryjudgment on the issue of direct liability on Napster’s part by virtue of its index. 410 However,note that the Ninth Ciruit’s earlier decision in Napster I held that “Napster users [as opposed toNapster itself] who upload files names to the search index for others to copy violate plaintiff’sdistribution rights.” 411In Perfect 10 v. Google, 412 discussed in detail in Section II.C.4 above, the district courtruled that Google did not publicly distribute infringing copies of Perfect 10’s copyrighted imagesthat could be located through the Google Image Search function. “A distribution of acopyrighted work requires an ‘actual dissemination’ of copies. … In the internet context, anactual dissemination means the transfer of a file from one computer to another. AlthoughGoogle frames and in-line links to third-party infringing websites, it is those websites, notGoogle, that transfer the full-size images to users’ computers [upon clicking on a thumbnail407408409410411412Pub. L. No. 109-9, 119 Stat. 218 (2005).In re Napster, Inc. <strong>Copyright</strong> Litigation, 377 F. Supp. 2d at 804.Id. at 804-05.Id. at 805. The court held, however, that the plaintiffs had submitted sufficient evidence of direct infringementby Napster’s users in the form of a showing of massive uploading and downloading of unauthorized copies ofworks, together with statistical evidence strongly suggesting that at least some of the plaintiffs’ copyrightedworks were among them. Id. at 806. “It may be true that the link between such statistical evidence ofcopyright infringement and the uploading or downloading of specific copyrighted works is at the moment aweak one. However, to avoid summary judgment, plaintiffs need only establish that triable issue of materialfact preclude entry of judgment as a matter of law. … Here in particular, the court is mindful of the fact that theparties have not even completed discovery relating to issues of copyright ownership and infringement.” Id. at806-07.A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9 th Cir. 2001).416 F. Supp. 2d 828 (C.D. Cal. 2006), aff’d sub nom. Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1169(9 th Cir. 2007).- 98 -