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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.
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