Advanced Copyright Issues on the Internet - Fenwick & West LLP

In Maverick Recording Co. v. Harper, 391 in considering a copyright infringement claimagainst the defendant for having copies of the plaintiffs’ copyrighted sound recordings in ashared folder on a peer-to-peer network, the court held that a complete download of a givenwork over the network is not required for copyright infringement to occur. Citing the WarnerBros. v. Payne and Interscope decisions, the court stated, “The fact that the Recordings wereavailable for download is sufficient to violate Plaintiffs’ exclusive rights of reproduction anddistribution. It is not necessary to prove that all of the Recordings were actually downloaded;Plaintiffs need only prove that the Recordings were available for download due to Defendant’sactions.” 392On appeal, the Fifth Circuit ruled that it need not address whether merely makingavailable files for download violates the distribution right because the defendant did not appealthe district court’s finding that she had infringed the plaintiffs’ copyrights by downloading andtherefore reproducing the audio files. Thus, the distribution issue was moot since thedefendant’s liability would remain even if the Fifth Circuit were to agree with the district courton the distribution issue. 393 The Fifth Circuit also ruled that the defendant was not entitled to aninnocent infringer defense as a matter of law because Section 402(d) makes that defenseunavailable when a proper copyright notice appears on the published phonorecords to which adefendant had access. There was no dispute that each of the published phonorecords from whichthe shared audio files were taken had proper copyright notices on them, and lack of legalsophistication as to what the notices meant was irrelevant. 394 (The court does not mentionwhether the audio files themselves that the defendant shared had copyright notices on them.)Accordingly, the court concluded that the plaintiffs must be awarded statutory damages of $750per infringed work. 395In Columbia Pictures Industries, Inc. v. Fung, 396 the court ruled, in the context of aBitTorrent site, that “uploading a copyrighted content file to other users (regardless of wherethose users are located) violates the copyright holder’s § 106(3) distribution right.” 397 Becauseof the nature of the BitTorrent protocol, users were not uploading the infringing content itself tothe defendants’ site, but rather were uploading dot-torrent files that contained only informationabout hosts from which the infringing content could be downloaded using the BitTorrentprotocol. The dot-torrent files were indexed on the defendants’ site for searching. Thus, thequoted language seems to implicitly hold that an actual distribution of infringing content is notrequired to infringe the distribution right, since the mere upload of the dot-torrent file throughwhich the infringing content could be located was sufficient to infringe.391392393394395396397Order, Maverick Recording Co. v. Harper, No. 5:07-CV-026-XR (W.D. Tex. Aug. 7, 2008).Id., slip op. at 10.Maverick Recording Co. v. Harper, 2010 U.S. App. LEXIS 3912 (5 th Cir. Feb. 25, 2010) at *9.Id. at *14-16.Id. at *17.2009 U.S. Dist. LEXIS 122661 (C.D. Cal. Dec. 21, 2009).Id. at *29.- 96 -