Copyright Infringment Lawyer, Internet Defamation, and Internet Privacy: Does DMCA Cover Attempted Distribution and Copyright Infringement?

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January 14, 2008


Plaintiffs’ effort to rewrite § 106(3) to reach such acts, moreover, is squarely foreclosed by Ninth Circuit authority. In Perfect 10 v., the Ninth Circuit concluded that “distribution requires an ‘actual dissemination’ of a copy.” Perfect 10 v., 2007 WL 4225819, slip op. at 15463, affirming in relevant part, Perfect 10, Inc. v. Google Inc., 416 F.Supp.2d 828, 844 (C.D. Cal. 2006). In coming to this conclusion, the Ninth Circuit joins a number of other courts that have addressed this issue in the digital context. See National Car Rental Sys., Inc. v. Computer Assoc. Int’l, 991 F.2d 426, 434 (8th Cir. 1993); In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802 (N.D. Cal. 2005) (collecting authorities); Arista Records, Inc. v., Inc., No. 00-Civ.-4660-SHS, 2002 WL 1997918 at *4 (S.D.N.Y. Aug. 29, 2002). The leading copyright law commentators also unanimously agree that “an actual transfer must take place; a mere offer for sale will not infringe the right.” Paul Goldstein, 2 GOLDSTEIN ON COPYRIGHT § 7.5.1 (3d ed. 2007); accord Melville B. Nimmer & David Nimmer, 2 NIMMER ON COPYRIGHT § 8.11[A] (2007); William F. Patry, 4 PATRY ON COPYRIGHT § 13:9 (2007) (“[W]ithout actual distribution of copies…, there is no violation of the distribution right.”).

Turning first to the language of the Copyright Act, Plaintiffs contend that the “authorization” clause contained in Section 106 somehow expands direct infringement liability to reach those who merely offer or make available copyrighted works. Plfs. Supp. Br. at 5. Not so. Congress intended the “authorization” clause to provide a statutory foundation for secondary liability, not to expand the scope of direct infringement liability.

A distribution of a copyrighted work requires an “actual dissemination” of copies. See In re Napster, Inc. Copyright Litig., 377 F.Supp.2d 796, 802-04 (N.D. Cal. 2005); accord Nimmer § 8.11[A]. In the Internet context, an actual dissemination means the transfer of a file from one computer to another.

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