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IP/Entertainment Case Law Updates

SA Music LLC v. Amazon.com, Inc.

District court grants Amazon’s motions to dismiss plaintiffs’ copyright infringement claims for making available for sale allegedly infringing recordings, holding distribution of copyrighted work in context of digital music store requires transfer or download of file containing copyrighted work from one computer to another.

Plaintiffs are the heirs of three composers in American music history—Harold Arlen, Ray Henderson and Harry Warren—whose works have been recorded by the most popular artists of all time. Plaintiffs alleged in separate cases, subsequently consolidated, that defendants made unauthorized copies of recordings of the copyrighted compositions, compiled entire albums, and contracted with Amazon to sell and distribute the recordings for prices lower than those for the legitimate recordings. 

Amazon moved to dismiss plaintiffs’ claim that it infringed on plaintiffs’ exclusive right of distribution by making available for sale the unauthorized works embodying the copyrighted musical compositions. Amazon argued that the claim was not legally cognizable because the right of distribution under the Copyright Act requires actual dissemination of the infringed copies by sale or other transfer of ownership or by rental, lease or lending. The court agreed, finding that distribution requires an actual dissemination of either copies or phonorecords or the transfer from one computer to another of a file containing the copy, and it dismissed the claims. 

While the court recognized that Nimmer, the Copyright Office and international treaties to which the United States is a signatory have concluded that the “act of making available sound recordings for downloading by the public through file‐sharing networks suffices to show actionable copyright infringement,” the court distinguished Amazon’s digital music store from file-sharing networks. 

The court found as key that when a copyrighted work is made available for downloading through a file-sharing network, these  downloads can occur at will, thereby satisfying the actual dissemination requirement. Because downloading from Amazon’s digital music store occurs only after the customer pays for the download, the actual dissemination requirement is not satisfied simply by making the work available for sale.

Noting that some courts have found that making copyrighted material available is sufficient to constitute distribution, the district court found those cases distinguishable “primarily because of how the copyrighted material was distributed.” For example, one case held copyrighted material was deemed distributed when listed on a public library catalog. The district court reasoned that this situation would be analogous to making a work available to the public through a file-sharing network—because a user can obtain the material at will—but is distinguished from requiring a customer to pay for the work before a download can occur.

The district court also noted that the Ninth Circuit “has consistently required that an actual distribution or dissemination occur.” Specifically, in a recent opinion in VHT, Inc. v. Zillow Grp., Inc., the Ninth Circuit concluded that there is no right to “make available for display” under the Copyright Act. Accordingly, the district court concluded that the “making available” theory is “neither supported by the statute nor embraced by the Ninth Circuit.”

Last, the district court held that distribution is not equivalent to publication under the Copyright Act and that “the definition of publication in 17 U.S.C. Sec. 101 makes clear that all distributions to the public are publications, but it does not state that all publications are distributions.” The Copyright Act defines publication to include not just any offer to distribute but only offers “to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display,” and plaintiffs did not allege that Amazon made an offer to distribute the unauthorized copies of the copyrighted compositions for those purposes. 

Accordingly, the court granted Amazon’s motions to dismiss, holding that distribution of a copyrighted work under Section 106(3) requires “actual dissemination” of the copyrighted work and, in the context of a digital music store, actual dissemination means the transfer (or download) from one computer to another of a file containing the copyrighted work.

Summary prepared by Linna Chen and Lisa Rubin