Advanced Copyright Issues on the Internet - Fenwick & West LLP

e able to make an end run ar4ound the standards for assessing contributory copyrightinfringement. 451Finally, the court rejected the arguments of the plaintiffs and various amici that the WIPOtreaties require the U.S. to provide a making-available right and that right should therefore beread into Section 106(3). The court noted that the WIPO treaties are not self-executing and lackany binding legal authority separate from their implementation through the copyright act. Thecontents of the WIPO treaties would be relevant only insofar as Section 106(3) was ambiguous,and there was no reasonable interpretation of Section 106(3) that would align with the UnitedStates’ treaty obligations. Concern for compliance with the WIPO treaties could not override theclear congressional intent in the language of Section 106(3). 452(3) Cases Refusing To Decide the IssueIn Arista Records LLC v. Does 1-16, 453 several record labels brought a copyrightinfringement claim against 16 unidentified defendants for illegally downloading and distributingthe plaintiffs’ copyrighted music through a peer-to-peer network and issued a subpoena seekinginformation from the State University of New York at Albany sufficient to identify eachdefendant. The defendants sought to quash the subpoena, in part on the basis that the plaintiffs’complaint was defective in that, in essence, according to the defendants, it alleged that thedefendants were infringers because they were making available copyrighted song files, butwithout any evidence of actual distribution of those files to the public. The court refused todecide whether the mere “making available” of song files would be sufficient to violate thedistribution right because the complaint did not use that language, but rather alleged that eachdefendant downloaded and/or distributed to the public copies of sound recordings. 454 “We arepersuaded by the majority of cases and the school of thought that Plaintiffs have adequately pledthat Defendants distributed Plaintiffs’ copyrighted work, by merely stating, within the fourcorners of the Complaint, the distribution allegation alone. The tasks of pleading and provingthat each Defendant actually distributed the copyright work do not necessarily collide at thisjuncture of the case, and dismissal of the Complaint would not be appropriate at this stage.” 4552. The Requirement of a “Public” DistributionUnlike the case of the public performance and public display rights, the copyright statutedoes not define what constitutes a “public” distribution. However, one might expect courts toafford a similarly broad interpretation of “public” with respect to the right of public distribution.Some distributions will clearly be “public,” such as the posting of material on a Usenetnewsgroup, and some will clearly not, such as sending e-mail to a single individual. Many otherInternet distributions will fall in between. However, one might expect courts to treat distribution451452453454455Id. at 1220-21.Id. at 1225-26.2009 U.S. Dist. LEXIS 12159 (N.D.N.Y. Feb. 18, 2009).Id. at *15-16.Id. at *16-17.- 105 -