include offers to do the acts enumerated in Section 106(3) further indicated its intent that an
actual distribution or dissemination is required by Section 106(3).^728
The court rejected the holding of other courts that the definition of “distribution” should
be taken to be the same as that of “publication,” noting that the legislative history does not
expressly state that distribution should be given the same broad meaning as publication, and in
any case, even if the legislative history indicated that some members of Congress equated
publication with distribution under Section 106(3), that fact could not override the plain meaning
of the statute. The court concluded that the statutory definition of publication is broader than the
term “distribution” as used in Section 106(3). Specifically, under the definition in Section 101, a
publication can occur by means of the distribution of copies of a work to the public, but it can
also occur by offering to distribute copies to a group of persons for purposes of further
distribution, public performance, or public display. Thus, while a publication effected by
distributing copies of the work is a distribution, a publication effected by merely offering to
distribute copies to the public is merely an offer of distribution, an actual distribution.^729
The court rejected the plaintiffs’ argument that Section 106 affords an exclusive right to
authorize distribution (based on Section 106’s language that “the owner of copyright under this
title has the exclusive rights to do and to authorize any of the following ...”) and that making
sound recordings available on a peer-to-peer network would violate such an authorization right.
The court concluded that the authorization clause merely provides a statutory foundation for
secondary liability, not a means of expanding the scope of direct infringement liability. The
court reasoned that if simply making a copyrighted work available to the public constituted a
distribution, even if no member of the public ever accessed that work, copyright owners would
be able to make an end run around the standards for assessing contributory copyright
infringement.^730
Finally, the court rejected the arguments of the plaintiffs and various amici that the WIPO
treaties require the U.S. to provide a making-available right and that right should therefore be
read into Section 106(3). The court noted that the WIPO treaties are not self-executing and lack
any binding legal authority separate from their implementation through the copyright act. The
contents of the WIPO treaties would be relevant only insofar as Section 106(3) was ambiguous,
and there was no reasonable interpretation of Section 106(3) that would align with the United
States’ treaty obligations. Concern for compliance with the WIPO treaties could not override the
clear congressional intent in the language of Section 106(3).^731
The defendant in this case, Jammie Thomas-Rasset, ultimately became the first peer-to-
peer file sharer to defend infringement litigation all the way to a jury verdict. In July 2007, a
jury concluded that she should pay $220,000 in statutory damages, but she was granted a motion
for a new trial based on the erroneous jury instruction discussed above. In the second trial, the
(^728) Id. at 1217-18.
(^729) Id. at 1219-20.
(^730) Id. at 1220-21.
(^731) Id. at 1225-26.