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Elektra Entertainment Group, Inc., et al. v. Barker

Plaintiff record companies filed suit against the defendant for copyright infringement, alleging that she copied and made available for distribution to others copyrighted sound recordings. The defendant moved to dismiss for failure to state a claim, arguing that: (1) the complaint does not plead copyright infringement with adequate specificity; and (2) making copyrighted recordings available for distribution to others was not a right protected by the Copyright Act.

With respect to the “make available” claim, the defendant argued that the plaintiffs cannot establish a violation of their distribution rights without an actual transfer of the plaintiffs’ works by the defendant. The plaintiffs, in turn, argued that §106(3) includes not only an exclusive right to physically distribute their copyrighted sound recording to the public but also an exclusive right to “make available” the copyrighted sound recordings to the public. Relying heavily on statutory construction and legislative history, the court held that the term “distribute,” which is not defined in the Copyright Act, and the term “publication,” which is defined in the Act, are synonymous. Having reached this conclusion, the court looked to the Act’s definition of “publication” in §101 in concluding that “the offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display” can violate the distribution right in §106.

The court nonetheless “hesitate[d] in equating this avenue of liability with the contourless ‘make available’ right proposed by Plaintiff[s],” finding support for the theory quite limited and that the Fourth Circuit’s decision in Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (1997), was not grounded in the statute. Given that the record companies had used the “make available” language in their complaint, and had not affirmatively pled that the defendant “made an offer to distribute, and that the offer to distribute was for purposes of further distribution, public performance, or public display,” the court provided the plaintiffs with thirty days to amend their complaint to be consistent with the opinion and affirmatively plead such an offer. The court found that despite a failure to state a claim with the existing “make available” language in the complaint, dismissal was not appropriate at this stage because the plaintiffs also had alleged actual distribution.

In reaching its holding with respect to offers to distribute, the court disagreed with the argument that the approval and understanding of WIPO by the 105th Congress should control the interpretation of §106(3).

The court additionally rejected the defendant’s argument that the complaint should be dismissed because it does not describe the infringement or the dates and times on which the infringements allegedly occurred, finding that the complaint adequately put the defendant on notice of the alleged acts of infringement. In reaching this conclusion, the court noted that the plaintiffs’ complaint attached a copy of the defendant’s “shared folder,” which included a comprehensive list of the infringed works, identified the network used and provided the defendant’s alias. The court found that a specific date or time of infringement was not required when continuing infringement was pled. Notably, the court was “unpersuaded” by a recent decision from the Southern District of California (Interscope Records v. Rodriquez), which held a similar complaint was not sufficient to state a claim upon which relief could be granted.