argument that Congress’ adoption of the WIPO Copyright Treaty, which contains an express
right of “making available” a copyrighted work to the public, should control the interpretation of
Section 106(3)’s distribution right. The court noted that, because the WIPO treaties were not
self-executing, they created no private right of action on their own. The court was also unwilling
to infer the intent of an earlier Congress when enacting amendments to the definition of the
distribution right from the acts of a later Congress in ratifying the WIPO Copyright Treaty.^710
Accordingly, the court was unwilling to equate Congress’ words, that the distribution right may
be infringed by “[t]he offer[] to distribute copies or phonorecords to a group of person for
purposes of further distribution, public performance, or public display,” to what the court
described as “the contourless ‘make available’ right proposed by Plaintiff.”^711
The court also rejected the argument in an amicus brief submitted by the MPAA that the
plaintiffs’ “make available” claim was supported by the introductory clause of Section 106,
which gives the owner of a copyright the exclusive right “to authorize” the enumerated rights.
The court cited and followed authority noting that Congress had added the “authorize” language
to Section 106 in order to avoid any confusion that the statute was meant to reach contributory
infringers, not to create a separate basis for direct infringement.^712
The court did, however, give the plaintiffs the opportunity to amend their complaint to be
faithful to the language of the copyright statute by alleging that the defendant had made an offer
to distribute, and that the offer to distribute was for the purpose of further distribution, public
performance, or public display.^713 In addition, the court denied the defendant’s motion to
dismiss the complaint entirely because the plaintiffs had adequately alleged that, in addition to
making their works available, the defendant had actually distributed the plaintiffs’ copyrighted
works in direct violation of the distribution right.^714 In August of 2008 the case settled.^715
In Atlantic Recording Corp. v. Howell,^716 seven major recording companies brought suit
against the defendants, who had allegedly made over 4,000 files available for download in a
shared folder on Kazaa. The private investigation company MediaSentry took screen shots
showing the files that were available for download. The plaintiffs owned registered copyrights
in 54 of the sound recordings in the folder. MediaSentry downloaded 12 of the copyrighted
recordings from the defendants’ computer, and the plaintiffs traced the computer to the
(^710) Id. at 242 n.7.
(^711) Id. at 243.
(^712) Id. at 245-46.
(^713) Id. at 244-45.
(^714) Id. at 245.
(^715) “RIAA Settles Pending ‘Making Available’ Claim,” BNA’s Electronic Commerce & Law Report (Aug. 27,
2008) at 1160.
(^716) 554 F. Supp. 2d 976 (D. Ariz. 2008).