Advanced Copyright Issues on the Internet - Fenwick & West LLP

distribution under the copyright act. The court concluded that it had erred and ordered a newtrial for the defendant. 447 The parties agreed that the only evidence of actual dissemination ofcopyrighted works was that plaintiffs’ infringement policing agent, MediaSentry, haddownloaded songs. The defendant argued that dissemination to an investigator acting as anagent for the copyright owner cannot constitute infringement. The court rejected this argument,noting that Eighth Circuit precedent clearly approved of the use of investigators by copyrightowners, and distribution to an investigator can constitute infringement. 448The court then turned to the issue of whether merely making available recordings fordownload constitutes unauthorized distribution. The court first noted that the plain language ofSection 106(3) does not state that making a work available for sale, transfer, rental, lease orlending constitutes distribution, and two leading copyright treatises (Nimmer and Patry) agreethat making a work available is insufficient to establish distribution. Congress’ choice not toinclude offers to do the acts enumerated in Section 106(3) further indicated its intent that anactual distribution or dissemination is required by Section 106(3). 449The court rejected the holding of other courts that the definition of “distribution” shouldbe taken to be the same as that of “publication,” noting that the legislative history does notexpressly state that distribution should be given the same broad meaning as publication, and inany case, even if the legislative history indicated that some members of Congress equatedpublication with distribution under Section 106(3), that fact could not override the plain meaningof the statute. The court concluded that the statutory definition of publication is broader than theterm “distribution” as used in Section 106(3). Specifically, under the definition in Section 101, apublication can occur by means of the distribution of copies of a work to the public, but it canalso occur by offering to distribute copies to a group of persons for purposes of furtherdistribution, public performance, or public display. Thus, while a publication effected bydistributing copies of the work is a distribution, a publication effected by merely offering todistribute copies to the public is merely an offer of distribution, an actual distribution. 450The court rejected the plaintiffs’ argument that Section 106 affords an exclusive right toauthorize distribution (based on Section 106’s language that “the owner of copyright under thistitle has the exclusive rights to do and to authorize any of the following …”) and that makingsound recordings available on a peer-to-peer network would violate such an authorization right.The court concluded that the authorization clause merely provides a statutory foundation forsecondary liability, not a means of expanding the scope of direct infringement liability. Thecourt reasoned that if simply making a copyrighted work available to the public constituted adistribution, even if no member of the public ever accessed that work, copyright owners would447448449450Id. at 1212 & 1227. The instruction to the jury read: “The act of making copyrighted sound recordingsavailable for electronic distribution on a peer-to-peer network, without license from the copyright owners,violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has beenshown.” Id. at 1212.Id. at 1214-15.Id. at 1217-18.Id. at 1219-20.- 104 -