Yesterday, a federal court ruled in Elektra v. Barker that "an offer to distribute ... for the purpose of further distribution" may be enough to violate a copyright owner's distribution right. This ruling opens the door open for civil attempt liability when it comes to distribution -- in other words, that having a song in a shared folder without authorization might be infringing, even if no one ever downloads it from you.

Back in January 2007, the court heard arguments in Elektra v. Barker, one of the thousands of cases brought against individuals by the recording industry. The briefing (amicus briefs were filed by EFF, CCIA, MPAA, and the United States) focused on the recording industry's "making available" argument in these cases. EFF has argued that "making available" really amounts to a new "attempted distribution" theory of copyright infringement, where the record industry can collect $750 per song even if no one ever made any copies of the songs in your shared folder.

In yesterday's ruling, the court appears to have been led astray by language in other decisions that treats "distribution" as synonymous with "publication" (which does include offers to distribute). While the two terms certainly shed light on each other in some circumstances, it is a mistake to treat them as identical in all circumstances. The concepts of "publication" and "distribution" serve very different purposes in the Copyright Act. Before the 1976 Copyright Act, federal copyright did not apply to a work until it was "published." So the moment of publication was critical both for calculating the duration of a copyright and for determining whether a work fell into the public domain for failure to comply with formalities (like including a copyright notice). By allowing mere offers to distribute to trigger publication, Congress was adopting a rule that limited the scope of copyright law. Just putting a book on sale would start the clock running on copyright. And if the book was even offered for sale without a copyright notice, you lost the copyright immediately. Those who were later sued for infringement wouldn't be put to the trouble of proving when the first copy was sold (which might have happened many years earlier).

When it comes to distribution, in contrast, including mere offers as acts of infringement expands the scope of the copyright, allowing copyright owners to reach mere attempts at distribution. There is no justification for this, since mere attempts do not actually harm copyright owners -- I can have thousands of songs in my shared folder, but if no one ever downloads any of them, how has the copyright owner been harmed? Moreover, when a copyright owner sues, the evidence should still be fresh (at least when compared with evidence regarding the initial publication of a work), making it unnecessary to allow a mere offer to stand in for actual evidence of distribution.

The good news is that this "offering to distribute" theory is still far from accepted in copyright circles, is at odds with the Ninth Circuit precedent (see Perfect 10 v., and is rejected by all the leading copyright law treatises. In addition, the court did not reach EFF's additional argument that the distribution right does not apply to digital transmissions at all. We'll have to leave that fight for another day.

The next ruling to address the "making available" argument is likely to be in Atlantic v. Howell, which may shed some light on how much influence yesterday's Elektra v Barker ruling will have on other judges.

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