Advanced Copyright Law on the Internet

through which the work passes, the recipient, or some combination of the foregoing? Thus, the
same issue of volition arises with respect to the distribution right as was discussed above in
connection with the reproduction right.

(a) Cases Addressing Whether Mere Posting Is a Distribution

Many decisions have addressed the question of whether the mere posting – i.e., the
“making available” – of a work on a BBS or other Internet site, or in a “shared file” folder within
peer-to-peer client software, from which it can be downloaded by members of the public
constitutes a public distribution of the work, and have reached quite contrary results, as detailed
in the next two subsections. In addition to those decisions, as detailed in the third subsection
below, several other decisions have declined to reach the issue and/or left the question open,
often acknowledging the existence of conflicting authority.

(1) Cases Holding That Mere Posting Is a Distribution

In Playboy Enterprises, Inc. v. Frena,^645 the court, with very little analysis of the issue,
held a BBS operator liable for infringement of the public distribution right for the making of
photographs available through the BBS that were downloaded by subscribers, even though the
defendant claimed he did not make copies of the photographs himself. But because the BBS was
apparently one devoted to photographs, much of it of adult subject matter, and subscribers
routinely uploaded and downloaded images therefrom, the court seems to have viewed the
defendant as a direct participant in the distributions to the public that took place through the
BBS.

Similarly, in Playboy Enterprises, Inc. v. Chuckleberry Publishing Inc.,^646 the court ruled
that uploading copyrighted pictorial images onto a computer in Italy which could be accessed by
users in the United States constituted a public distribution in the United States. In contrast to the
Netcom case, the court noted that the defendant did more than simply provide access to the
Internet. Instead, the defendant provided services and supplied the content for those services,
which gave users the option to either view or download the images. By actively soliciting
United States customers to the services, the court concluded that the defendant had distributed its
product within the United States.

In Playboy Enterprises, Inc. v. Webbworld, Inc.,^647 the court held the defendants directly
liable for infringing the distribution right by making copyrighted images available through a
website for downloading by subscribers. The court found that, in contrast to the Netcom case,
the defendants took “affirmative steps to cause the copies to be made.”^648

(^645) 839 F. Supp. 1552 (M.D. Fla. 1993).
(^646) 939 F. Supp. 1032, 1039 (S.D.N.Y. 1996).
(^647) 45 U.S.P.Q.2d 1641 (N.D. Tex. 1997).
(^648) Id. at 1647.