through the Kazaa network, that “[l]isting unauthorized copies of sound recordings using an
online file-sharing system constitutes an offer to distribute those works, thereby violating a
copyright owner’s exclusive right of distribution.”^655 The court relied on the Supreme Court’s
equating of the term “distribute” with “publication” in Harper & Row Publishers, Inc. v. Nation
Enterprises,^656 noting that publication is defined to include the “offering to distribute copies.”
The court also relied on the logic of Hotaling v. Church of Jesus Christ of Latter-Day Saints,^657
which held a library engages in the distribution of a copyrighted work when it adds the work to
its collections, lists the work in its index or catalog and makes the work available for borrowing
or browsing.^658 Accordingly, the court denied the defendant’s motion to dismiss: “Making an
unauthorized copy of a sound recording available to countless users of a peer-to-peer system for
free certainly contemplates and encourages further distribution, both on the Internet and
elsewhere. Therefore, the Court is not prepared at this stage of the proceedings to rule out the
Plaintiffs’ ‘making available’ theory as a possible ground for imposing liability. A more detailed
understanding of the Kazaa technology is necessary and Plaintiffs may yet bring forth evidence
of actual uploading and downloading of files, rendering use of the ‘making available’ theory
unnecessary.”^659
In Universal City Studios Productions v. Bigwood,^660 the court granted summary
judgment of infringement against the defendant, a user of Kazaa who had made two of the
plaintiffs’ copyrighted motion pictures available in his shared folder. Citing Hotaling and
Napster I and no contrary authority, and without any further analysis of its own, the court ruled
that “by using KaZaA to make copies of the Motion Pictures available to thousands of people
over the internet, Defendant violated Plaintiffs’ exclusive right to distribute the Motion
Pictures.”^661
In Motown Record Co. v. DePietro,^662 the court, citing the Ninth Circuit’s Napster I case,
held that a “plaintiff claiming infringement of the exclusive-distribution right can establish
infringement by proof of actual distribution or by proof of offers to distribute, that is, proof that
the defendant ‘made available’ the copyrighted work [in this case, via a peer-to-peer system].”^663
(^655) Id. at 8.
(^656) 471 U.S. 539 (1985).
(^657) 118 F.3d 199 (4th Cir. 1997).
(^658) 2006 U.S. Dist. LEXIS at 9-10.
(^659) Id. at 11.
(^660) 441 F. Supp. 2d 185 (D. Me. 2006).
(^661) Id. at 190.
(^662) 2007 U.S. Dist. LEXIS 11626 (E.D. Pa. Feb. 16, 2007).
(^663) Id. at 12.