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'Distribution' in Peer-to-Peer File-Sharing Lawsuits

By Robert W. Clarida and Robert J. Bernstein
The efforts of the entertainment industry to stem the infringement of sound recordings and motion pictures on the Internet have been widely reported. More than 20,000 infringement actions have been commenced against individuals, mostly in connection with their use of peer-to-peer ('P2P') services to share recordings with other P2P users. The legal basis for these actions is often misunderstood, however, by commentators ' and sometimes even by the courts. This article discusses several recent P2P cases that deal directly with a central element of most P2P cases, namely the allegation that users violate the plaintiffs' distribution rights under 17 U.S.C. '106 whenever they place a digital recording or video in a 'share' folder that other P2P users can access.

What Is 'Distribution'?

Under the Copyright Act, a copyright owner has various exclusive rights, including the right 'to distribute copies ' of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.' The Act does not define the word 'distribute.' 'Copies' of works are defined as 'material objects ' in which a work is fixed and from which the work can be perceived,' thus distribution is clearly limited to some sort of activity involving tangible copies, but the Act is largely silent as to what that activity would be. All the statute says is that it must constitute sale or other transfer of ownership of the tangible copies, or 'rental, lease or lending' of them. Contrary to arguments often made in defense of P2P file sharing, the statute does not require that distribution must involve or result in a physical copy literally moving from one place to another.

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