In losing a case over the copyright holder’s 106(3) exclusive right of distribution, one reads every case and all of the legislative history on the subject. Even when studied, the distribution right protected by copyright has fuzzy contours and intangible aspects. Copyright is a creature of federal law and statute, but distribution is more a matter of contract, lex mercatoria, and the U.C.C. Thus, what distinguishes the two regimes, and to which caesar is tribute owed.
The latest, best analysis of the distribution right comes as a result of the ‘plausibility’ probing that The Supremes required after Bell Atl. v Twombly, (2007). In Elektra Entert. v. Barker, 7:05CV7340 (3/31/2008 S.D.N.Y.), the standard suit by the RIAA against some peer-sharer got non-standard review. The claim that Barker infringed the right of distribution went under the microscope, because RIAA alleged that the copyrighted works had been “made available” as an infringement distinct from actual distribution.
In the end, the Judge found enough allegations of actual distribution, but held that just making a copyrighted work “available” for distribution failed to state a claim of infringement of the enumerated statutory rights. “[B]ecause Congress did not expressly equate the act of ‘offering to distribute’… to the act of ‘making available,’ Plaintiffs’ allegations – insofar as Plaintiffs wish to hold Defendant liable for acts of infringement other than actual downloading and/or distribution – fail to state a claim.” Reduced to an analogy, advertising “$8.95 copies of last year’s Oscar winning movies,” but selling none, does not infringe the copyright owner’s exclusive right to distribute.
The infringement alleged in my first copyright trial requires a working knowledge of skee-ball as is played at coastal amusement parks, and of the fabulous prizes always on display. Understand this much, no one wins the big prizes hanging about the booth. Those just attract skee-ballers to play, only to win junky, little, novelty prizes. My defendants displayed plush toys that were beloved characters in a most-famous movie. No one ever won one, i.e., none ever were “distributed,” but these toys were ‘made available.’ As the saying goes, if I knew then what I know now, maybe the 2nd Circuit already would have ruled on the available right of distribution.