defendants and filed an action for copyright infringement. The plaintiffs filed a motion for
summary judgment of infringement.^717
The court denied the motion. Citing numerous decisions and two copyright treatises, the
court noted the general rule that infringement of the distribution right requires an actual
dissemination of either copies or phonorecords. The court rejected the plaintiffs’ reliance on the
Hotaling case and the Ninth Circuit’s Napster I decision. With respect to Hotaling, the court
noted that in that case the plaintiff had already proved that the library made unlawful copies and
placed them in its branch libraries, so there had been actual distributions of copies in addition to
listing of the unlawful copies in the library’s catalog. With respect to the Napster I decision, the
court noted that the Ninth Circuit in the later Perfect 10 v. Amazon case had grouped the
holdings of Hotaling and Napster I together based upon the factual similarity that in both cases
the owner of a collection of works made them available to the public. Only in such a situation
could the holding of Hotaling potentially apply to relieve the plaintiff of the burden to prove
actual dissemination of an unlawful copy of a work. The defendant in the Perfect 10 case did not
own a collection of copyrighted works or communicate them to the public, so the Ninth Circuit
found Hotaling inapplicable.^718 The Howell court went on to note the following:
However, the court did hold that “the district court’s conclusion [that distribution
requires an ‘actual dissemination’] is consistent with the language of the
Copyright Act.” That holding contradicts Hotaling and casts doubt on the single
unsupported line from Napster upon which the recording companies rely.^719After surveying the many decisions addressing the issue, the court concluded that it
agreed “with the great weight of authority that § 106(3) is not violated unless the defendant has
actually distributed an unauthorized copy of the work to a member of the public. ... Merely
making an unauthorized copy of a copyrighted work available to the public does not violate a
copyright holder’s exclusive right of distribution.”^720 In reaching its conclusion, the court
rejected the plaintiffs’ argument that “distribution” and “publication” are synonymous terms in
the statute for all purposes. Rather, the court noted it was not clear that “publication” and
“distribution” are synonymous outside the context of first publication, which was the subject of
discussion in the Supreme Court’s Harper & Row decision. Citing London-Sire, the court noted
that while all distributions to the public are publications, not all publications are distributions.^721
The court concluded: “A plain reading of the statute indicates that a publication can be either a
distribution or an offer to distribute for the purposes of further distribution, but that a distribution
(^717) Id. at 978.
(^718) Id. at 981-82.
(^719) Id. at 982 (quoting Perfect 10 v. Amazon.com, Inc., 487 F.3d 701, 718 (9th Cir. 2007) (superseded by 508 F.3d
1146 (9th Cir. 2007)).
(^720) 554 F. Supp. 2d at 983.
(^721) Id. at 984.