In Latin American Music Co. v. Archdiocese of San Juan,^695 although not a case
involving online activity, the First Circuit held that the defendant’s mere listing in its licensing
catalog of songs that it did not own the copyright for did not constitute infringement. The court
ruled that mere authorization of an infringing act is insufficient basis for copyright infringement,
as infringement depends upon whether an actual infringing act, such as copying or performing,
has taken place.^696
In London-Sire Records, Inc. v. Doe 1,^697 the court ruled that merely listing recordings as
available for downloading on a peer-to-peer service did not infringe the distribution right. The
court held that authorizing a distribution is sufficient to give rise to liability, but only if an
infringing act occurs after the authorization.^698 The court rejected the plaintiff’s argument to the
contrary based on the Supreme Court’s equating of the term “distribute” with “publication” in
Harper & Row Publishers, Inc. v. Nation Enterprises.^699 The court noted that the Supreme Court
stated only that Section 106(3) recognized for the first time a distinct statutory right of first
publication, and quoted the legislative history as establishing that Section 106(3) gives a
copyright holder the right to control the first public distribution of an authorized copy of his
work.^700 The court went on to state, however, “That is a far cry from squarely holding that
publication and distribution are congruent.”^701
The court noted that the statutory language itself suggests the terms are not synonymous.
Noting that “publication” incorporates “distribution” as part of its definition (“publication” is
“the distribution of copies or phonorecords of a work to the public”), the court reasoned:
By the plain meaning of the statute, all “distributions ... to the public” are
publications. But not all publications are distributions to the public – the statute
explicitly creates an additional category of publications that are not themselves
distributions. For example, suppose an author has a copy of her (as yet
unpublished) novel. If she sells that copy to a member of the public, it constitutes
both distribution and publication. If she merely offers to sell it to the same
member of the public, that is neither a distribution nor a publication. And if the
author offers to sell the manuscript to a publishing house “for purposes of further
distribution,” but does not actually do so, that is a publication but not a
distribution.^702(^695) 499 F.3d 32 (1st Cir. 2007).
(^696) Id. at 46-47.
(^697) 542 F. Supp. 2d 153 (2008).
(^698) Id. at 166.
(^699) 471 U.S. 539 (1985).
(^700) London-Sire, 542 F. Supp. 2d at 168.
(^701) Id.
(^702) Id. at 169.