Actual Interpretation Yields Actual Dissemination: An Analysis of the Make Available Theory Argued in Peer-to-Peer File Sharing Lawsuits, and Why Courts Ought to Reject It

The Recording Industry Association of America has sued thousands of individuals for peer-to-peer file sharing in an attempt to save the failing music industry and resist new technology. The lawsuits rely on an interpretation of copyright law that making a work available to the public is an infringement of the distribution right. The recording industry has vigorously argued this make available theory because it is easy to prove, given the limited evidence obtainable in peer-to-peer file sharing cases. However, the district courts in various federal circuits are split on accepting this theory, some holding that actual dissemination is required to prove distribution. This article first reviews the history of recording industry litigation, then provides a detailed analysis of both the make available and the actual dissemination theories of copyright infringement. Finally, this article proposes a solution to the inequities inherent in a federal circuit split and the injustice of allowing the recording industry to enforce its copyrights through a flawed interpretation of the law