jury returned a verdict for $1.92 million. The court later reduced the award to $54,000 but
granted the plaintiffs’ request for a new trial on damages. After a third trial, the jury again
returned a special verdict that included a statutory damages award of $1.5 million ($62,500 for
each shared song, multiplied by 24 songs).^732
In Fox Broadcasting Co. v. Dish Network LLC,^733 the court rejected Fox’s argument that
the mere “making available” of Fox’s programming to subscribers was sufficient to constitute a
distribution. The district court observed that, while neither the Ninth Circuit nor any other
circuit court had addressed the “make available” theory of distribution under the copyright
statute, it had been considered by a number of courts, and the great majority of courts that had
considered the question had stopped short of fully endorsing the “make available” right. The
district court found those cases persuasive and concluded that Dish’s act of merely “making
available” copyrighted programming to its subscribers through its Prime Time Anytime (PTAT)
service did not amount to distribution without actual dissemination.^734 (For a detailed discussion
of this case, see Section II.A.4(u) above.)
(3) Cases Refusing To Decide the Issue- In Arista Records LLC v. Greubel, 453 F. Supp. 2d 961 (N.D. Tex. 2006), the court,
although not deciding on a motion to dismiss whether the electronic transmission over a
computer network (here, transmission of copyrighted recordings through a file sharing network)
or the mere listing of such copyrighted recordings in a directory as available for download, is
sufficient to violate a copyright owner’s distribution right, the court cited numerous decisions so
holding or suggesting that either of such acts is sufficient for infringement of the distribution
right, and concluded that such decisions were sufficient to deny the defendant’s motion to
dismiss the complaint on the pleadings.^735 The court stated, “[M]aking copyrighted works
available to others may constitute infringement by distribution in certain circumstances.”^736 - Maverick Recording Co. v. Goldshteyn, 2006 U.S. Dist. LEXIS 52422 at *3 (E.D.N.Y.
July 31, 2006) (“[T]he ‘making available’ argument need not be decided here.”). - Fonovisa, Inc. v. Alvarez, 2006 U.S. Dist. LEXIS 95559 at *8 (N.D. Tex. July 24,
- (“This Court is not making a determination as to whether ‘making works available’
violates the right of distribution.”).
- Warner Bros. Records, Inc. v. Payne, 2006 U.S. Dist. LEXIS 65765 at *4 (W.D. Tex.
July 17, 2006) (declining to “rule out the Plaintiffs’ ‘making available’ theory as a possible
ground for imposing liability”).
(^732) “On Third Shot, Jury Returns $1.5 Million Statutory Damages Verdict Against P2P User,” BNA’s Electronic
Commerce & Law Report (Nov. 10, 2010) at 1692.
(^733) 2015 U.S. Dist. LEXIS 23496 (C.D. Cal. Jan. 21, 2015).
(^734) Id. at *59-61.
(^735) Id. at 967-71.
(^736) Id. at 969 (emphasis added).