Napster a direct infringer of the plaintiffs’ exclusive distribution rights. The plaintiffs relied on
Hotaling v. Church of Jesus Christ of Latter-Day Saints,^681 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. The Napster court
distinguished the Hotaling case, arguing that the library had itself made actual, unauthorized
copies of copyrighted materials made available to its borrowers. By contrast, Napster did not
itself have a “collection” of recordings on its servers, but rather merely an index of recordings.^682
“This might constitute evidence that the listed works were available to Napster users, but it is
certainly not conclusive proof that the songs identified in the index were actually uploaded onto
the network in a manner that would be equivalent to the way in which the genealogical materials
at issue in Hotaling were copied and distributed to the church’s branch libraries.”^683
The court further noted that the definition of “publication” in the copyright statute, which
the Supreme Court observed in a 1985 case that the legislative history equated with the right of
distribution,^684 requires the distribution of copies or phonorecords of a work to the public or the
offering to distribute copies of that work for purposes of further distribution, public performance,
or public display. The court held that merely by indexing works available through its system,
Napster was not offering to itself distribute copies of the works for further distribution by its
users.^685
The plaintiffs argued that the requirement of a transmission of a material object in order
to find a violation of the distribution right was no longer viable in view of the recently enacted
Artists’ Rights and Theft Prevention Act of 2005 (the ART Act).^686 The plaintiffs cited Section
103(a)(1)(C) of the ART Act, codified at 17 U.S.C. § 506(a), which provides criminal sanctions
for any person who willfully infringes a copyright by the distribution of a work being prepared
for commercial distribution, by making it available on a computer network accessible to
members of the public. The plaintiffs interpreted this provision as imposing criminal liability on
any person who willfully makes an unauthorized copy of a copyrighted work available on a
publicly accessible computer network while that work is being prepared for commercial
distribution, and argued that Congress must have understood civil liability for copyright
infringement to be equally broad.^687
The court rejected this argument, noting that the ART Act did not amend Section 106(3)
of the copyright statute, and in any event Section 103(a)(1)(C) of the ART Act makes clear that
willful copyright infringement and making the work available on a computer network are
separate elements of the criminal offense. Hence, the mere making available of an unauthorized
(^681) 118 F.3d 199 (4th Cir. 1997).
(^682) In re Napster, Inc. Copyright Litigation, 377 F. Supp. 2d at 802-03.
(^683) Id. at 803.
(^684) Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
(^685) In re Napster, Inc. Copyright Litigation, 377 F. Supp. 2d at 803-05.
(^686) Pub. L. No. 109-9, 119 Stat. 218 (2005).
(^687) In re Napster, Inc. Copyright Litigation, 377 F. Supp. 2d at 804.