Bit Parts

Federal district courts are split on the sufficiency of complaints by content owners alleging that unauthorized file sharers infringe by “making available” the plaintiffs' copyrights. Now the U.S. District Court for the Eastern District of North Carolina has weighed in on the issue. Warner Bros. Records Inc. v. Doe, 5:08-CV-116-FL. The district court noted: “[T]he Fourth Circuit has held that a library distributes a copyrighted work under Sec. 106(3) [of the Copyright Act] when it 'holds a copy in its collection, lists the copy in its card file, and makes the copy available to the public,' Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 204 (4th Cir. 1997). Parties dispute whether the holding in Hotaling extends to the context of sound recordings made available over the [I]nternet. The court, however, need not decide here whether 'making available' a sound recording over the [I]nternet constitutes a distribution, as plaintiffs' complaint sufficiently alleges an actual dissemination of copies of the recordings has occurred.” The district court continued: “The complaint alleges, upon information and belief, that defendant 'without the permission or consent of Plaintiffs, has continuously used, and continues to use, an online media distribution system to download and/or distribute to the public certain of the Copyrighted Recordings.' ' Attached to the complaint is an exhibit that provides a list of copyrighted recordings, the specific peer-to-peer network used, and an IP address that can reasonably be inferred to belong to defendant. (Ex. A). Exhibit A also contains a date and time, which the complaint indicates is when the files were 'captured.' ' The court, drawing all reasonable factual inferences in plaintiffs' favor, reads this as an allegation that copies of the recordings were actually obtained from defendant at that date and time. In light of these allegations, the court rejects defendant's assertion that '[t]he Complaint and Exhibit A, when taken in the light most favorable to the Plaintiffs, allege only the existence, in a static state, of ten song recordings on a given computer connected to the Internet at a certain moment in time.'”