Distribution Required????

Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4th Cir. 1997)holds that a library distributed a work by adding it to the collection and listing it in the catalog, making the work available to the public. And distribution is the key to infringement in the RIAA cases. Other courts are reluctant to follow Hotaling's simplistic formulation, upping the ante in proof that must be offered by the RIAA.

In the view of some courts, Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985), equates the term “distribute” with “publication”; and the Copyright Act in turn defines publication to include the “offering to distribute copies...to a group of persons for purposes of further distribution.”

Listing music files for downloading on a P2P network may not infringe the distribution right. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153 (D. Mass. 2008). And in Elektra Entertainment Group, Inc. v. Barker, 551 F. Supp. 2d 234 (S.D.N.Y. 2008), the Court held that “publication” has been given a broad interpretation, but all publications were not necessarily distributions. Merely “making [copyrighted works] available” did not violate the distribution right. Rather, plaintiffs would have to prove defendant “offer[ed] to distribute copies or phonorecords to a group of persons for purposes of further distribution.”

In Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976 (D. Ariz. 2008), Judge Wake followed the approach of London-Sire and Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). It deemed that “the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. … Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”

We're waiting for appellate review on this issue.