Accordingly, the court concluded that the defendants could not be liable for violating the
plaintiffs’ distribution right unless a “distribution” actually occurred.^703 But that conclusion, did
not, however, mean that the plaintiffs’ pleadings and evidence were insufficient: “The Court can
draw from the Complaint and the current record a reasonable inference in the plaintiffs’ favor –
that where the defendant has completed all the necessary steps for a public distribution, a
reasonable fact-finder may infer that the distribution actually took place.”^704
The court also made the following additional rulings:-- That the Section 106(3) distribution right is not limited to physical, tangible objects,
but also confers on copyright owners the right to control purely electronic distributions of their
work. The court reasoned that electronic files are “material objects” in which a sound recording
can be fixed, and electronic distributions entail the movement of such electronic files, thereby
implicating the distribution right.^705
-- That actual downloads of the plaintiffs’ works made by the plaintiffs’ investigator
were “sufficient to allow a statistically reasonable inference that at least one copyrighted work
was downloaded at least once [by persons other than the investigator]. That is sufficient to make
out a prima facie case for present purposes.”^706
In Elektra Entertainment Group, Inc. v. Barker,^707 contrary to the London-Sire Records
decision (which incidentally was decided on the same day), the court ruled that, based on the
legislative history of the copyright statute and the Supreme Court’s Harper & Row decision, the
words “distribution” and “publication” should be construed as synonymous, and therefore the
right of distribution should be equated to the right of publication.^708 Accordingly, the court ruled
that the same acts that would constitute a publication as defined in Section 101 of the copyright
statute – namely, the “offer[] to distribute copies or phonorecords to a group of persons for
purposes of further distribution, public performance, or public display” – would also violate the
distribution right, and that proof of an actual transfer need not be shown.^709
However, the court rejected the plaintiff’s argument that a violation of the distribution
right could be established by a mere showing of the “making available” of copyrighted works by
the defendant, as the plaintiffs had pled in their complaint. The court rejected the plaintiffs’
(^703) Id.
(^704) Id.
(^705) Id. at 169-71 & 172-74.
(^706) Id. at 176. “As noted above, merely exposing music files to the internet is not copyright infringement. The
defendants may still argue that they did not know that logging onto the peer-to -peer network would allow others
to access these particular files, or contest the nature of the files, or present affirmative evidence rebutting the
statistical inference that downloads occurred.”Id.
(^707) 551 F. Supp. 2d 234 (S.D.N.Y. 2008).
(^708) Id. at 239-41.
(^709) Id. at 242 (quoting 17 U.S.C. § 101’s definition of “publication”).