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

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.

The law certainly never required physical movement of copies in the pre-Internet world, as is evident in Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4^th Cir. 1997). In Hotaling, the Fourth Circuit reversed a lower court to hold that a copyright owner's distribution right was violated by the placing of a single, unauthorized copy of a book on the shelf of a library. Whether or not any patron ever checked out the book, the library had made it available to the public, which was enough to violate the distribution right. The Fourth Circuit noted: '[T]he record does not contain any evidence showing specific instances ' in which the libraries loaned the infringing copies to members of the public. But ' proving the libraries held unauthorized copies in their collections, where they were available to the public, is sufficient to establish distribution within the meaning of the statute.' Over a brief and respectful dissent, the court reasoned that 'when a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public. At that point, members of the public can visit the library and use the work.' Id. (Emphasis added).