“Making Available” as an Act of Distribution Under Section 106 of the U.S. Copyright Act

By James Hetz.

Published by The Technology Collection

Format Price
Article: Print $US10.00
Article: Electronic $US5.00

The impetus for the current article is the recent United States District Court case of Atlantic Recording Corp. v. Brennan in the state of Connecticut. The case involves a copyright infringement action brought by major recording companies against an individual for uploading and placing numerous legally and illegally copied MP3 files of sound recordings owned by the plaintiffs on a peer to peer website. One of the plaintiffs’ theories was that in making the illegal copies available for download by the public, defendant had violated their exclusive right of distribution. The defendant was properly served with process and failed to appear or answer. The plaintiffs moved for a clerk’s entry of default and then moved for entry of default judgment. The district court judge denied the motion for default judgment by finding that making MP3’s publicly available (“making available”) on a peer to peer download website was not distribution under the US Copyright Law. The district court, in its ruling on plaintiffs motion, found that distribution under 17 U.S.C. § 106(3) requires actual dissemination of the illegal copy. In other words, there must be an allegation that the illegal copy made available was downloaded by another user on the site.

In essence, the district court’s ruling has sided with a handful of federal district court and federal court of appeals cases finding “making available” is not distribution. However, there are few federal court cases that have found that “making available” does constitute distribution under § 106(3). In both instances, the cases that can be cited for either proposition fail to delineate their findings in any meaningful way. Therefore, they have little value as precedent on the issue.

This article attempts to provide a starting point for finding that “making available” is distribution under the 17 U.S.C. §101 et. seq.

Keywords: Peer to Peer, Copyright Act, Making Available, Exclusive Right of Distribution, Copyright Infringement

The International Journal of Technology, Knowledge and Society, Volume 5, Issue 4, pp.47-54. Article: Print (Spiral Bound). Article: Electronic (PDF File; 1.131MB).

James Hetz

Associate Professor of Law, Barkley School of Law, Barry University School of Law, Orlando, Florida, USA

Adjunct Professor of Law at Barry University School of Law in Orlando, Florida teaching courses in Copyright Law, Intellectual Property Law, and Entertainment Law. Former Associate Professor of Law at the Barkley School of Law. Practicing attorney for the last 11 years in the areas of Intellectual Property and Entertainment Law. Partner in Florida law firm of Hetz, Jones & Goldberg, LLC, with offices in Orlando and West Palm Beach.

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