This article appeared in Entertainment Law & Finance, your monthly source for real-world news and strategy from major players in entertainment, contract and intellectual property law — serious analysis of the issues and case law that affect your practice.

Federal courts have long disagreed over whether the unauthorized "making available" of a plaintiff's works to the public is sufficient to constitute copyright infringement under the U.S. Copyright Act, 17 U.S.C. §106(3). The U.S. Court of Appeals for the Ninth Circuit holds the view that actual distribution of the works is required. See, e.g., Perfect 10 Inc. v. Amazon.com Inc., 487 F.3d 701 (9^th Cir. 2007). The Fourth Circuit, on the other hand, has taken the position that for purposes of an infringement analysis, a library, for example, distributes a work when it "holds a copy in its collection, lists the copy in its card file, and makes the copy available to the public." Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199 (4^th Cir. 1997).

A June 2020 ruling by the U.S. District Court for the Western District of Washington demonstrates the consistency of the actual distribution requirement within the Ninth Circuit, while a June 2020 decision by the U.S. District Court for the Eastern District of Virginia considered what evidence is sufficient for proving direct infringement through file sharing. Hotaling played a role in the outcomes of both litigations.