Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
Recent Court Views on "Making Available" Controversy in Copyright Infringement
Federal courts have long disagreed over whether the unauthorized "making available" of a plaintiff's works to the public is sufficient to constitute copyright infringement under the U.S. Copyright Act, 17 U.S.C. §106(3). The U.S. Court of Appeals for the Ninth Circuit holds the view that actual distribution of the works is required. See, e.g., Perfect 10 Inc. v. Amazon.com Inc., 487 F.3d 701 (9th Cir. 2007). The Fourth Circuit, on the other hand, has taken the position that for purposes of an infringement analysis, a library, for example, distributes a work 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 (4th Cir. 1997).
A June 2020 ruling by the U.S. District Court for the Western District of Washington demonstrates the consistency of the actual distribution requirement within the Ninth Circuit, while a June 2020 decision by the U.S. District Court for the Eastern District of Virginia considered what evidence is sufficient for proving direct infringement through file sharing. Hotaling played a role in the outcomes of both litigations.
In SA Music LLC v. Amazon.com Inc., 2:20-cv-00105 (W.D.Wash. 2020), three consolidated copyright infringement cases were filed by the heirs of "American Songbook" composers Harold Arlen, Ray Henderson and Harry Warren. The complaints claimed defendant Lenandes Ltd. was in the business of selling pirated albums online that contained the songwriters' compositions, including by "making available for sale" to consumers. The complaints stated this was done via an agreement with co-defendant Amazon. Amazon moved to have the "making available" claim dismissed.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.