A Making Available Right?

In a routine suit against downloading via KaZaA, and in an opinion that focused almost entirely on the consequences of spoilation of evidence, Judge Cynthia Rufe of the Eastern District of Pennsylvania, in Motown Records Co. v. Theresa DePietro, Civ. No. 04-CV-2246 (Feb. 16, 2007)(HT to Paul Fakler), tossed off these remarks (p. 7):

A plaintiff claiming infringement of the exclusive-distribution right can establish infringement by proof of actual distribution or by proof of offers to distribute, that is proof that the defendant "made available" the copyrighted work. [38]
[38]. While neither the United States Supreme Court nor the Third Circuit has confirmed a copyright holder's exclusive right to make the work available, the Court is convinced that 17 U.S.C. § 106 encompasses such a right based on its reading of the statute, the important decision in A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Circuit 2001), and the opinion offered by the Register of Copyrights, Marybeth Peters, in a letter to Congressional hearings on piracy of intellectual property on peer-to-peer networks, Letter from Marybeth Peters, Register of Copyrights, to Rep. Howard Berman, from the 28th Dist. of Cal. (Sept. 25, 2002)("[M]aking [a work] available for other users of [a] peer to peer network to download ... constitutes an infringement of the exclusive distribution right, as well as the reproduction right").

Ray Beckerman has a wrap up of some recent cases here in a January 22, 2007 article in the Hollywood Reporter. Professor Jane Ginsburg has an article about the issue from an international perspective here.