must involve a ‘sale or other transfer of ownership’ or a ‘rental, lease, or lending’ of a copy of
the work.”^722
Finally, the court noted that the plaintiffs’ motion for summary judgment must also fail
because they had not proved that a Kazaa user who places a copyrighted work into the shared
folder distributes a copy of that work when a third party downloads it. The court noted that in
the Kazaa system the owner of the shared folder does not necessarily ever make or distribute an
unauthorized copy of the work. And if the owner of the shared folder simply provides a member
of the public with access to the work and the means to make an unauthorized copy, the owner
would not be liable as a primary infringer of the distribution right, but rather would be
potentially liable only as a secondary infringer of the reproduction right.^723 The court therefore
concluded that the plaintiffs’ motion for summary judgment must fail because “they have not
explained the architecture of the KaZaA file-sharing system in enough detail to determine
conclusively whether the owner of the shared folder distributes an unauthorized copy (direct
violation of the distribution right), or simply provides a third-party with access and resources to
make a copy on their own (contributory violation of the reproduction right).”^724
In Capitol Records Inc. v. Thomas,^725 the court sua sponte raised the issue of whether it
had erred in instructing the jury that making sound recordings available for distribution on a
peer-to-peer network, regardless of whether actual distribution was shown, qualified as
distribution under the copyright act. The court concluded that it had erred and ordered a new
trial for the defendant.^726 The parties agreed that the only evidence of actual dissemination of
copyrighted works was that plaintiffs’ infringement policing agent, MediaSentry, had
downloaded songs. The defendant argued that dissemination to an investigator acting as an
agent for the copyright owner cannot constitute infringement. The court rejected this argument,
noting that Eighth Circuit precedent clearly approved of the use of investigators by copyright
owners, and distribution to an investigator can constitute infringement.^727
The court then turned to the issue of whether merely making available recordings for
download constitutes unauthorized distribution. The court first noted that the plain language of
Section 106(3) does not state that making a work available for sale, transfer, rental, lease or
lending constitutes distribution, and two leading copyright treatises (Nimmer and Patry) agree
that making a work available is insufficient to establish distribution. Congress’ choice not to
(^722) Id. at 985.
(^723) Id. at 986.
(^724) Id.
(^725) 579 F. Supp. 2d 1210 (D. Minn. 2008).
(^726) Id. at 1212 & 1227. The instruction to the jury read: “The act of making copyrighted sound recordings
available for electronic distribution on a peer-to -peer network, without license from the copyright owners,
violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been
shown.” Id. at 1212.
(^727) Id. at 1214-15.