Advanced Copyright Law on the Internet

• Atlantic Recording Corp. v. Brennan, 2008 U.S. Dist. LEXIS 23801 at *3 (D. Conn.
  Feb. 13, 2008) (denying plaintiffs’ entry of default against defendant, in part, by finding that
  defendant may have a meritorious defense against plaintiffs’ “problematic” make available
  argument).


• Electra Entertainment Group, Inc. v. Doe, 2008 U.S. Dist. LEXIS 98145 at *8-9
  (E.D.N.C. Dec. 4, 2008) (court need not decide whether “making available” a sound recording
  over the Internet constitutes a distribution because the plaintiffs’ complaint sufficiently alleged
  an actual dissemination of copies of the recordings had occurred).


• Warner Bros. Records, Inc. v. Doe, 2008 U.S. Dist. LEXIS 98143 at *8-9 (E.D.N.C.
  Dec. 4, 2008) (same).


• In Arista Records LLC v. Does 1-16,2009 U.S. Dist. LEXIS 12159 (N.D.N.Y. Feb. 18,
  2009), several record labels brought a copyright infringement claim against 16 unidentified
  defendants for illegally downloading and distributing the plaintiffs’ copyrighted music through a
  peer-to-peer network and issued a subpoena seeking information from the State University of
  New York at Albany sufficient to identify each defendant. The defendants sought to quash the
  subpoena, in part on the basis that the plaintiffs’ complaint was defective in that, in essence,
  according to the defendants, it alleged that the defendants were infringers because they were
  making available copyrighted song files, but without any evidence of actual distribution of those
  files to the public. The court refused to decide whether the mere “making available” of song
  files would be sufficient to violate the distribution right because the complaint did not use that
  language, but rather alleged that each defendant downloaded and/or distributed to the public
  copies of sound recordings.^737 “We are persuaded by the majority of cases and the school of
  thought that Plaintiffs have adequately pled that Defendants distributed Plaintiffs’ copyrighted
  work, by merely stating, within the four corners of the Complaint, the distribution allegation
  alone. The tasks of pleading and proving that each Defendant actually distributed the copyright
  work do not necessarily collide at this juncture of the case, and dismissal of the Complaint would
  not be appropriate at this stage.”^738

(b) Other Cases Adjudicating the Scope of the Distribution Right

(1) Hearst Stations v. Aereo

In Hearst Stations Inc. v. Aereo, Inc.,^739 Aereo used antenna and DVR technology to
transmit over-the-air television broadcasts over the Internet to its subscribers. The technology
allowed users to watch programming live (with a few second delay) or to record it for viewing at
a later time. In either case, when a user elected to watch a program, a small antenna (out of a
large array of antennas) was assigned exclusively to that user for that time period to intercept the
signal as the program was broadcast over-the-air and transmit it to the user’s designated space on

(^737) Id. at 15-16.
(^738) Id. at 16-17.
(^739) 2013 U.S. Dist. LEXIS (D. Mass. Oct. 8, 2013).