In United States v. Carani,^664 the court ruled that storing child pornography in a shared
folder on the Kazaa peer-to-peer network where it could be downloaded by others qualified as an
illegal “distribution” of child pornography, thus justifying an enhanced punishment.^665
In ICG-Internet Commerce Group, Inc. v. Wolf,^666 the court denied a motion for
summary judgment that the defendant had infringed the plaintiff’s distribution right in an adult
video by posting the video to the defendant’s web site, because it was unclear from a screenshot
of the defendant’s web site showing a hyperlink to “[s]ex tape download souces [sic]” whether
the hyperlink linked to a streaming or downloadable source file containing the plaintiff’s video.
The court did, however, find that the plaintiff’s copy and public display rights had been violated
by the posting of the video on the defendant’s site from which it could be viewed publicly.^667
In Maverick Recording Co. v. Harper,^668 in considering a copyright infringement claim
against the defendant for having copies of the plaintiffs’ copyrighted sound recordings in a
shared folder on a peer-to-peer network, the court held that a complete download of a given work
over the network is not required for copyright infringement to occur. Citing the Warner Bros. v.
Payne and Interscope decisions, the court stated, “The fact that the Recordings were available for
download is sufficient to violate Plaintiffs’ exclusive rights of reproduction and distribution. It is
not necessary to prove that all of the Recordings were actually downloaded; Plaintiffs need only
prove that the Recordings were available for download due to Defendant’s actions.”^669
On appeal, the Fifth Circuit ruled that it need not address whether merely making
available files for download violates the distribution right because the defendant did not appeal
the district court’s finding that she had infringed the plaintiffs’ copyrights by downloading and
therefore reproducing the audio files. Thus, the distribution issue was moot since the defendant’s
liability would remain even if the Fifth Circuit were to agree with the district court on the
distribution issue.^670 The Fifth Circuit also ruled that the defendant was not entitled to an
innocent infringer defense as a matter of law because Section 402(d) makes that defense
unavailable when a proper copyright notice appears on the published phonorecords to which a
defendant had access. There was no dispute that each of the published phonorecords from which
the shared audio files were taken had proper copyright notices on them, and lack of legal
sophistication as to what the notices meant was irrelevant.^671 (The court does not mention
whether the audio files themselves that the defendant shared had copyright notices on them.)
(^664) 492 F.3d 867 (7th Cir. 2007).
(^665) Id. at *21-23; accord United States v. Shaffer, 472 F.3d 1219, 1123-24 (10th Cir. 2007).
(^666) 519 F. Supp. 2d 1014 (E.D. Pa. 2007).
(^667) Id. at 1018-19.
(^668) Order, Maverick Recording Co. v. Harper, No. 5:07-CV-026-XR (W.D. Tex. Aug. 7, 2008).
(^669) Id., slip op. at 10.
(^670) Maverick Recording Co. v. Harper, 598 F.3d 193, 197 (5th Cir. 2010).
(^671) Id. at 198-99.