Is "Offering to Distribute" the Same as "Distribution" Under the Copyright Act
The District Court for Arizona in Atlantic v. Howell rejected the record industry's motion for summary judgment that contended that merely making available music files for downloading through a file sharing service constituted copyright infringement. This reverses the court's previous ruling from August 2007. The key issue is whether "making available" or "offering to distribute" copyrighted works, absent evidence of actual distribution, violates a copyright owner's exclusive distribution rights under Section 106 of the Copyright Act. This is the third case this April to weigh in on this issue. Howell joins the U.S. District Court in Massachusetts in London-Sire Records v. Doe in requiring more than merely making the infringing works available. The Southern District of New York held the opposite in Elektra v. Barker. Undoubtedly this is just the beginning so stay tuned. For more information (albeit from an interested party), the EFF has a page addressing these issues.
