Advanced Copyright Issues on the Internet - Fenwick & West LLP

version of the image displayed in the Google search results]. Because Google is not involved inthe transfer, Google has not actually disseminated – and hence, [] has not distributed – theinfringing content.” 413On appeal, the Ninth Circuit affirmed this ruling. Because Google’s search enginecommunicated only HTML instructions telling a user’s browser where to find full size images onweb site, and Google did not itself distribute copies of the infringing photographs, Google didnot have liability for infringement of the right of distribution with respect to full size images thatcould be located and displayed through the Image Search function. 414 Perfect 10 argued that,under the Napster I and Hotaling cases discussed above, the mere making available of imagesviolates the copyright owner’s distribution right. The Ninth Circuit held that this “deemeddistribution” rule did not apply to Google, because, unlike the users of the Napster system or thelibrary in Hotaling, Google did not own a collection of stored full size images that it madeavailable to the public. 415In Latin American Music Co. v. Archdiocese of San Juan, 416 although not a caseinvolving online activity, the First Circuit held that the defendant’s mere listing in its licensingcatalog of songs that it did not own the copyright for did not constitute infringement. The courtruled that mere authorization of an infringing act is insufficient basis for copyright infringement,as infringement depends upon whether an actual infringing act, such as copying or performing,has taken place. 417In London-Sire Records, Inc. v. Doe 1, 418 the court ruled that merely listing recordings asavailable for downloading on a peer-to-peer service did not infringe the distribution right. Thecourt held that authorizing a distribution is sufficient to give rise to liability, but only if aninfringing act occurs after the authorization. 419 The court rejected the plaintiff’s argument to thecontrary based on the Supreme Court’s equating of the term “distribute” with “publication” inHarper & Row Publishers, Inc. v. Nation Enterprises. 420 The court noted that the Supreme Courtstated only that Section 106(3) recognized for the first time a distinct statutory right of firstpublication, and quoted the legislative history as establishing that Section 106(3) gives acopyright holder the right to control the first public distribution of an authorized copy of his413414415416417418419420Id. at 844 (citing In re Napster, Inc. <strong>Copyright</strong> Litigation, 377 F. Supp. 2d 796, 802-04 (N.D. Cal. 2005)).Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9 th Cir. 2007).Id. at 1162-63. Cf. National Car Rental Sys. v. Computer Assocs. Int’l, Inc., 991 F.2d 426, 434 (8 th Cir. 1993)(stating that infringement of the distribution right requires the actual dissemination of copies or phonorecords).499 F.3d 32 (1 st Cir. 2007).Id. at 46-47.542 F. Supp. 2d 153 (2008).Id. at 166.471 U.S. 539 (1985).- 99 -