Advanced Copyright Issues on the Internet - Fenwick & West LLP

work. 421 The court went on to state, however, “That is a far cry from squarely holding thatpublication and distribution are congruent.” 422The court noted that the statutory language itself suggests the terms are not synonymous.Noting that “publication” incorporates “distribution” as part of its definition (“publication” is“the distribution of copies or phonorecords of a work to the public”), the court reasoned:By the plain meaning of the statute, all “distributions … to the public” arepublications. But not all publications are distributions to the public – the statuteexplicitly creates an additional category of publications that are not themselvesdistributions. For example, suppose an author has a copy of her (as yetunpublished) novel. If she sells that copy to a member of the public, it constitutesboth distribution and publication. If she merely offers to sell it to the samemember of the public, that is neither a distribution nor a publication. And if theauthor offers to sell the manuscript to a publishing house “for purposes of furtherdistribution,” but does not actually do so, that is a publication but not adistribution. 423Accordingly, the court concluded that the defendants could not be liable for violating theplaintiffs’ distribution right unless a “distribution” actually occurred. 424 But that conclusion, didnot, however, mean that the plaintiffs’ pleadings and evidence were insufficient: “The Court candraw from the Complaint and the current record a reasonable inference in the plaintiffs’ favor –that where the defendant has completed all the necessary steps for a public distribution, areasonable fact-finder may infer that the distribution actually took place.” 425The court also made the following additional rulings:-- That the Section 106(3) distribution right is not limited to physical, tangible objects,but also confers on copyright owners the right to control purely electronic distributions of theirwork. The court reasoned that electronic files are “material objects” in which a sound recordingcan be fixed, and electronic distributions entail the movement of such electronic files, therebyimplicating the distribution right. 426-- That actual downloads of the plaintiffs’ works made by the plaintiffs’ investigatorwere “sufficient to allow a statistically reasonable inference that at least one copyrighted work421422423424425426London-Sire, 542 F. Supp. 2d at 168.Id.Id. at 169.Id.Id.Id. at 169-71 & 172-74.- 100 -