Under the WIPO Internet Treaties, member states are required to recognize in their national laws  the exclusive right of  authors of works to ‘‘make [the works] available’’ and ‘‘communicate [the works] to the public’’, including through interactive platforms, such as the Internet. The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (‘‘DMCA’’) in 1998.  Based on advice received from the Copyright Office and others, Congress did not amend U.S. law to include explicit references to ‘‘making available’’ and ‘‘communication to the public,’’ concluding that the distribution right under the Copyright Act already covers those rights.  However, because of  the absence of express “making available” language in the Copyright Act, courts in file-sharing litigation have reached somewhat different conclusions as to whether the distribution right requires proof of actual dissemination.

Commentators on the subject have opined that the “making available” right is subsumed within the distribution rights set forth in Section 106 of the Copyright Act and that most courts have correctly interpreted the Act as such.  These courts have found that a defendant infringes the distribution right by making the work available without having proof that the work was actually accessed by others.  For example, in  A&M Records, Inc. v. Napster, the 9th Circuit held that “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights”.  Also in UMG Recordings, Inc. v. Alburger, the United States District Court for the Eastern District of Pennsylvania held that “There is no requirement that plaintiffs show that the files were actually downloaded by other users from Defendant, only that files were available for downloading.”

However, it appears that some courts have concluded that an infringement of the distribution right under the Act does not occur in the absence of actual dissemination. For example, in Atlantic Recording Corp. v. Howell, the District Court of Arizona  held that “[the distribution right] is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public.” 
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