Advanced Copyright Issues on the Internet - Fenwick & West LLP

unauthorized copy of a sound recording available to countless users of a peer-to-peer system forfree certainly contemplates and encourages further distribution, both on the Internet andelsewhere. Therefore, the Court is not prepared at this stage of the proceedings to rule out thePlaintiffs’ ‘making available’ theory as a possible ground for imposing liability. A more detailedunderstanding of the Kazaa technology is necessary and Plaintiffs may yet bring forth evidenceof actual uploading and downloading of files, rendering use of the ‘making available’ theoryunnecessary.” 382In Universal City Studios Productions v. Bigwood, 383 the court granted summaryjudgment of infringement against the defendant, a user of Kazaa who had made two of theplaintiffs’ copyrighted motion pictures available in his shared folder. Citing Hotaling andNapster I and no contrary authority, and without any further analysis of its own, the court ruledthat “by using KaZaA to make copies of the Motion Pictures available to thousands of peopleover the internet, Defendant violated Plaintiffs’ exclusive right to distribute the MotionPictures.” 384In Motown Record Co. v. DePietro, 385 the court, citing the Ninth Circuit’s Napster I case,held that a “plaintiff claiming infringement of the exclusive-distribution right can establishinfringement by proof of actual distribution or by proof of offers to distribute, that is, proof thatthe defendant ‘made available’ the copyrighted work [in this case, via a peer-to-peer system].” 386In United States v. Carani, 387 the court ruled that storing child pornography in a sharedfolder on the Kazaa peer-to-peer network where it could be downloaded by others qualified as anillegal “distribution” of child pornography, thus justifying an enhanced punishment. 388In ICG-Internet Commerce Group, Inc. v. Wolf, 389 the court denied a motion forsummary judgment that the defendant had infringed the plaintiff’s distribution right in an adultvideo by posting the video to the defendant’s web site, because it was unclear from a screenshotof the defendant’s web site showing a hyperlink to “[s]ex tape download souces [sic]” whetherthe hyperlink linked to a streaming or downloadable source file containing the plaintiff’s video.The court did, however, find that the plaintiff’s copy and public display rights had been violatedby the posting of the video on the defendant’s site from which it could be viewed publicly. 390382383384385386387388389390Id. at *11.441 F. Supp. 2d 185 (D. Me. 2006).Id. at 190.2007 U.S. Dist. LEXIS 11626 (E.D. Pa. Feb. 16, 2007).Id. at *12.2007 U.S. App. LEXIS 16148 (7 th Cir. July 6, 2007).Id. at *21-23; accord United States v. Shaffer, 472 F.3d 1219, 1123-24 (10 th Cir. 2007).519 F. Supp. 2d 1014 (E.D. Pa. 2007).Id. at 1018-19.- 95 -