Chipping Away at the RIAA's "Making Available" Theory of Copyright Infringement

by Thomas Paschalis November 4 2008, 12:15

I.    Introduction

On September 8, 2003, the Recording Industry Association of America (RIAA) filed copyright infringement lawsuits against 261 individuals for sharing songs on peer-to-peer (P2P) networks.[1]  In the five years since, the RIAA has sued, settled, or threatened litigation against over 30,000 Americans for alleged violations of the Digital Millennium Copyright Act.[2]  These actions have attracted a great deal of public attention, largely due to the fact that the suits have hit very close to home for many Americans.  Unlike prior lawsuits, which targeted software programs such as Napster and Grokster, this new chapter in the file-sharing saga has focused on ordinary people.[3]  The targets of the RIAA’s legal claims run the spectrum of everyday people who are not typically the subjects of copyright actions, including children, parents, grandparents, single mothers, professors, and college students.[4]

The RIAA’s strategic offensive against music consumers has spurred a firestorm of debate concerning topics such as copyright law, technology, privacy, and legal procedure.  For the first few years of the RIAA’s legal efforts, the focus of legal and social observers centered on the RIAA’s tactics for identifying and filing suit against potential defendants.[5]  In the last year, however, as contested cases have made their way through district court litigation, the focus has shifted to the interpretation of black-letter copyright law.  The RIAA’s “making available” theory of infringement has garnered a great deal of attention, though its acceptance by district courts has been inconsistent.  To date, the few district courts to rule on the matter have each interpreted the Copyright Act differently in the context of file-sharing, indicating that there is likely to be ongoing uncertainty until appellate level courts offer clarification.  For the moment, though the trend is moving away from acceptance of the "making available" theory, courts appear more willing to allow the RIAA to prevail on the basis of actual dissemination.

II.     The Right to Distribute Under the Copyright Act

Allegations of file-sharing implicate the right to distribute creative works, and the RIAA cases are thus litigated under this provision of the Copyright Act.  Section 106(3) of the Copyright Act gives a copyright owner the exclusive right to distribute, or authorize others to distribute “copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership.”[6]  The concept of distribution is often interrelated to publication, as “the distribution of copies or phonorecords of a work to the public constitutes a ‘publication’ of such work.”[7]

III.    The Thomas Decision and the Origins of the "Making Available" Theory

The “making available” theory of copyright infringement has been the keystone to the RIAA’s legal claims.  However, there is no express statutory authority for equating “making available” with infringement in the absence of evidence of actual acquisition of the work by another party.  The Copyright Act states that “anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 . . . is an infringer of the copyright of the author.”[8]  Thus, the litigants in RIAA cases have been engaged in a heated debate over the plain meaning of the term “distribution” in section 106(3).  The RIAA believes that distribution occurs when a copyrighted work is made available for download over P2P networks, while opponents argue that no distribution takes place until someone downloads the work and there is actual dissemination.  This distinction is key because the RIAA does not obtain evidence of actual downloading of the songs found in shared folders.  The only evidence of actual downloading it brings to court are the downloads performed by its investigators, who are arguably agents.  As a result, the RIAA has no evidence that songs “made available” were actually disseminated to others.

At the dawn of the Internet age, courts were forced to confront the issue of sharing copyrighted works over electronic networks.  In Playboy Enters., Inc. v. Frena, the defendant was the proprietor of a subscription-based, computer bulletin board service onto which users uploaded scanned images from Playboy magazine for other users who downloaded them.[9]  The court said that by making the images available for downloading, the defendant “supplied a product,” thus engaging in unauthorized distribution of copies to subscribers.[10]  It is noteworthy that, in this case, Fena admitted that each of the files had been downloaded by at least one of his customers, clearly evincing actual dissemination as well.[11]

Due the heavy pressure placed on defendants to settle, the extensive amount of pre-trial procedural motions, and the RIAA’s frequent decisions to drop suits involving innocent and mistakenly identified defendants, the first RIAA case against a private individual to reach a verdict was Capitol v. Thomas in 2007.  In Thomas, a Minnesota woman was found liable for willful copyright infringement because she uploaded twenty-four songs on the Kazaa P2P network.[12]  Prior the jury’s award of $222,000 in statutory damages, both parties vehemently contested jury instruction number fourteen, relating to the standard for copyright infringement.[13]  The defendant’s counsel urged the judge to maintain his original instruction, mandating that an actual transfer, rather than merely making files available, is necessary for a determination that the right to distribute has been violated.[14]  The judge, however, amended the instruction, siding with the plaintiff’s interpretation that making a copyrighted work available is infringement.[15]   

The Thomas decision was seen as a major victory for the RIAA, both in term of the verdict and the extremely high damage award, which would seemingly compel other defendants to settle out of court.  The victory did not last long, however.  After receiving a motion to set aside the verdict, the judge reconsidered his jury instruction in light of case law he had subsequently come across.[16]  Ultimately, Judge Davis concluded that the jury instruction was inaccurate and overturned the verdict.[17]  In doing so, he offered a detailed plain meaning analysis pertaining to the interpretation of the work “distribution.”  Upon examining the use of the term in other provisions of the Copyright Act, in addition to the analogous Patent Act, he determined that distribution requires actual dissemination.[18]  Judge Davis looked at the phrase “distribute . . . to the public . . . by sale or other transfer of ownership, or by rental lease, or lending” and judged that an affirmative act beyond a mere offer to distribute was necessary to effectuate “distribution.”[19]

Judge Davis also determined that a “publication” and “distribution” were separate concepts.[20]  Specifically, he said that a “publication effected by distributing copies . . . of the work is a distribution,” while “a publication effected by merely offering to distribute copies . . . is merely an offer of distribution, not a distribution.”[21]  Essentially, in reviewing the Copyright Act as a whole, he determined that a publication could encompass an offer to distribute, but an offer to distribute does not fall within the statutory right to distribution.[22]

In the wake of the recent ruling, the RIAA’s notion of a precedent-setting victory in Thomas has been tempered, and their keystone legal theory has been dealt a severe blow.  Nevertheless, when the case is retried, Judge Davis did determine that the downloads conducted by the RIAA’s investigation company, MediaSentry, can be used as evidence of copyright infringement at the new trial.[23]  Such evidence could show actual dissemination of the files Ms. Thomas made available, though it is sure to elicit another argument regarding the downloading of songs by an agent.  Practically speaking, a copyright holder, or its agent, cannot infringe on a copyright it owns.

IV. Recent Court Decisions Concerning File-Sharing

Within a year of the original Thomas decision, a handful of other cases at varying stages of litigation undertook a similar analysis of the “making available theory.”  Elektra v. Barker represents one major decision of significance.  Though the judge was merely ruling on a motion to dismiss, it was one of the few cases in which the arbiter has heard arguments and been fully briefed on the “making available” dispute.[24]  In Barker, Judge Karas determined that Congress intended the terms “publication” and “distribute” to be synonymous when it enacted the Copyright Act.[25]  He further stated that though making files available is not distribution, it is making an offer to distribute.[26]  In his opinion, an allegation of an offer to distribute is sufficient to take the case to trial, and he thus denied the defendant’s motion to dismiss.[27]

A ruling denying the RIAA’s motion for summary judgment in Atlantic v. Howell featured reasoning diametrically opposed to that offered in Barker.  In Howell, after reviewing briefs and hearing oral arguments, the federal district court decisively rejected the “making available” theory of infringement.[28]  The court did not settle for Barker’s acceptance of the offer to distribute theory; on the contrary, it determined that an infringement of the distribution right requires actual dissemination.[29]  Furthermore, unlike Judge Davis’s decision in Thomas, this court determined that evidence of MediaSentry’s downloads from the defendant’s shared file is not sufficient to establish distribution because this defendant had argued that Kazaa had shared his whole hard drive without his knowledge.[30]  In a rather unprecedented comment, the court went on to suggest that P2P file-sharing might not implicate the distribution right at all.[31]  Rather, it stated that what is really happening is series of reproductions, moving the legal grounds for suit over to section 106(1).[32]

Further muddying the waters, in London-Sire v. Doe 1, a Massachusetts court offered perhaps the most comprehensive analysis of the infringement of the distribution right.  First, the court rejected the “making available” theory, favoring an actual dissemination standard.[33]  In returning to the language of the stature, the court focused on the Copyright Act’s reservation to the owner the right “to do and to authorize . . . the distribution.”[34]  It cited precedent indicating that Congress’s intent in including the words “to authorize” was to avoid any uncertainty as the statute’s applicability to contributory infringers.[35]  Focusing on the language “to do,” a defendant, according to this court, cannot violate the Copyright Act by authorizing an infringement if no actual infringement occurs.[36]  Therefore, the “making available” theory does not suffice.[37]  Rather, the alleged infringer must take more affirmative steps before the work changes hand and “do” the infringing.[38]

The court went on to distinguish between a publication and a distribution, stating that a publication incorporates a distribution, though not vice versa.  It offered an example by stating: "[S]uppose an author has a copy of her (as yet unpublished) novel. If she sells that copy to a member of the public, it constitutes both distribution and publication. If she merely offers to sell it to the same member of the public, that is neither a distribution nor a publication. And if the author offers to sell the manuscript to a publishing house 'for purposes of further distribution,' but does not actually do so, that is a publication but not a distribution."[39]

Following this line of reasoning, the court believed that Congress’s choice of the word “distribute” as the section 106(3) right indicates that distribution, not a mere offer of distribution must occur to trigger infringement.[40]  The only positive aspect of this decision, as far as the RIAA is concerned, was the court’s willingness to allow the case to proceed further into discovery on account of the notion that an allegation of an offer to distribute is sufficient to keep the case alive, allowing the plaintiff a chance to prove actual distribution at a later stage in the process.[41]

V.    Conclusion

The wide range of right to distribute interpretations handed down by courts in the last year alone indicates the likelihood that we are to see more litigation on the subject.  As is often the case, it is noteworthy that an issue with seemingly narrow counters elicits such nuanced differences in statutory interpretation.  The dispute over the competing infringement standards, “making available” and “actual dissemination,” is rooted in the language of section 106(3).  From there, the analysis expands into the definition of the terms “distribution” and “publication,” whereupon some courts choose to do a comprehensive analysis of the Copyright Act and even look at related statutes as well.

Most likely, Congress and federal appellate courts, and perhaps even the Supreme Court, will have to step into the fray.  If and when this occurs, it will be interesting to observe whether policy considerations are introduced into the assessment of black letter law, as the social and technological implications of file-sharing further coalesce into a quantifiable economic impact.  The recording industry alleges that it is losing a great deal of money.  For their part, the anti-RIAA forces have indicated that they do not seek a file-sharing free-for-all, as they have proposed compulsory license systems in which fees are collected from P2Ps by performing rights organizations.[42]  As courts hammer out their legal analyses of the situation, it is clear that the lawsuits have not chilled P2P file-sharing, and the RIAA has no intention of discontinuing its aggressive pursuit of online piracy.

For time being, it seems as though the "making available" theory has been disfavored by trial courts.  Despite this trend, anti-RIAA forces should not rejoice, as many of those same courts are willing to allow the RIAA's own downloads as evidence of actual dissemination.  I suspect we will get more opinions on the subject in the near future, until one day, as Judge Davis implored when he set aside the Thomas verdict, the Supreme Court or Congress steps in with a definitive test.


[1] Electronic Frontier Foundation, RIAA v. The People: Five Years Later,, Sept. 2008, (last visited Oct. 16, 2008).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] 17 U.S.C. § 106(3).

[7] 1 Melville B. Nimmer, Nimmer on Copyright § 4.05 (2008).

[8] 17 U.S.C. § 501(a).

[9] Playboy Enter., Inc. v. Frena, 839 F. Supp. 1552, 1554 (M.D. Fla. 1993).

[10] Id. at 1556.

[11] Id. at 1554.

[12] Eric Bangeman, How the RIAA Tasted Victory: A Perfect Storm Which Might Not Be Repeated, Ars Technica, Oct. 7, 2007, (last visited Oct. 17, 2008).

[13] Eric Bangeman, Debate Over “Making Available” Jury Instruction As Capitol v. Thomas Wraps Up, Ars Technica, Oct. 4, 2007, (last visited Oct. 17, 2008).

[14] Id.

[15] Id.

[16] Eric Bangeman, Thomas Verdict Overturned, Making Available Theory Rejected, Ars Technica, Sept. 24, 2008, (last visited Oct. 17, 2008).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Bangeman, supra note 16.

[24] Eric Bangeman, New Ruling May “Grease the Wheels” of RIAA Litigation Machine, Ars Technica, Mar. 31, 2008, (last visited Oct. 17, 2008).

[25] Id.

[26] Id.

[27] Id.

[28] Fred von Lohmann, Big Victory in Atlantic v. Howell: Court Rejects RIAA “Making Available” Theory,, Apr. 29, 2008, (click on “Atlantic v. Howell” link, then click on “Order Denying Recording Industry Motion for Summary Judgment” link) (last visited Oct. 17, 2008).

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 166 (D. Mass 2008).

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id. at 167.

[39] Id. at 168.

[40] Id.

[41] Id.

[42] Electronic Frontier Foundation, supra note 1.

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