Advanced Copyright Issues on the Internet - Fenwick & West LLP

<strong>Copyright</strong> Act.” That holding contradicts Hotaling and casts doubt on the singleunsupported line from Napster upon which the recording companies rely. 440After surveying the many decisions addressing the issue, the court concluded that itagreed “with the great weight of authority that § 106(3) is not violated unless the defendant hasactually distributed an unauthorized copy of the work to a member of the public. … Merelymaking an unauthorized copy of a copyrighted work available to the public does not violate acopyright holder’s exclusive right of distribution.” 441 In reaching its conclusion, the courtrejected the plaintiffs’ argument that “distribution” and “publication” are synonymous terms inthe statute for all purposes. Rather, the court noted it was not clear that “publication” and“distribution” are synonymous outside the context of first publication, which was the subject ofdiscussion in the Supreme Court’s Harper & Row decision. Citing London-Sire, the court notedthat while all distributions to the public are publications, not all publications are distributions. 442The court concluded: “A plain reading of the statute indicates that a publication can be either adistribution or an offer to distribute for the purposes of further distribution, but that a distributionmust involve a ‘sale or other transfer of ownership’ or a ‘rental, lease, or lending’ of a copy ofthe work.” 443Finally, the court noted that the plaintiffs’ motion for summary judgment must also failbecause they had not proved that a Kazaa user who places a copyrighted work into the sharedfolder distributes a copy of that work when a third party downloads it. The court noted that inthe Kazaa system the owner of the shared folder does not necessarily ever make or distribute anunauthorized copy of the work. And if the owner of the shared folder simply provides a memberof the public with access to the work and the means to make an unauthorized copy, the ownerwould not be liable as a primary infringer of the distribution right, but rather would bepotentially liable only as a secondary infringer of the reproduction right. 444 The court thereforeconcluded that the plaintiffs’ motion for summary judgment must fail because “they have notexplained the architecture of the KaZaA file-sharing system in enough detail to determineconclusively whether the owner of the shared folder distributes an unauthorized copy (directviolation of the distribution right), or simply provides a third-party with access and resources tomake a copy on their own (contributory violation of the reproduction right).” 445In Capitol Records Inc. v. Thomas, 446 the court sua sponte raised the issue of whether ithad erred in instructing the jury that making sound recordings available for distribution on apeer-to-peer network, regardless of whether actual distribution was shown, qualified as440441442443444445446Id. at 982 (quoting Perfect 10 v. Amazon.com, Inc., 487 F.3d 701, 718 (9 th Cir. 2007) (superseded by 508 F.3d1146 (9 th Cir. 2007)).554 F. Supp. 2d at 983.Id. at 984.Id. at 985.Id. at 986.Id.579 F. Supp. 2d 1210 (D. Minn. 2008).- 103 -