'Making Available': When an Offer to Distribute is Equivalent to Distribution

Abstract

Imagine a hypothetical scenario where you could be sued for copyright infringement - and lose - for offering to loan someone a CD you bought, or worse, for misplacing a book you borrowed. This is not yet the law, but if the courts accept an innovative argument put forward by the Recording Industry Association of America (RIAA), a similarly disturbing conclusion could apply to digital content. This Note examines whether the distribution right under the Copyright Act, 17 U.S.C. Sec. 106(3) requires solely an offer, or both an offer and receipt, to constitute copyright infringement.

If the RIAA's theory were to be accepted, the act of making copyrighted content available to another person without permission from the copyright holder, such as by loaning a CD or posting a hyperlink, would constitute copyright infringement. Furthermore, plaintiffs would not be required to show evidence of intent, thus creating a valid cause of action even if the offer to distribute had been unintentional. In execution, courts have disagreed over whether a plaintiff must provide evidence of actual receipt. Some that have declined to adopt the "making available" argument have done so because the capacity of copyright owners to pursue remedies against infringers is neither diminished nor restricted without it. Under current law, plaintiffs need only present evidence that their distribution rights were in fact violated in order to successfully prevail in a copyright infringement lawsuit.

In Part I, we discuss the proposed argument in detail and the outcome of prior cases ruling on the theory. In Part II, we discuss various approaches to the question, including arguments based on the plain language of the Act, legislative history, and case law. In Part III we discuss potential future effects and policy implications. And in Part IV we discuss possible solutions requiring either private agreements or legislative action.

Keywords: copyright, infringement, distribution, RIAA, making, available, offer, distribute, 106(3)