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Inspired by some things I've been reading: if you have a creative work which copyright law forbids you from distributing, and you're careless enough to leave a copy of the work in a situation where someone else can easily make a copy of it, would that count as distribution for purposes of a copyright infringement lawsuit? Or do you have to have the intent to distribute it for the lawsuit to be likely to succeed?

The (hypothetical) situation I had in mind for this is that a group of friends pool their resources and acquire a shared file server. They all trust each other and know not to use the server for sensitive data, so they don't bother to set up access controls that would prevent them from viewing each others' files. Now, suppose one of them uploads a copy of some copyrighted material to the server. It's something which they have the legal right to possess, but not to distribute, and (I forgot to mention this originally) their reason for uploading it is purely personal. For example, the material might be a rip of a DVD that they own which they want to transfer to their phone, or a legally acquired piece of software that they want to back up. The other friends are not told about the upload, but - critically - the uploader doesn't take measures to prevent them from accessing it either (like making it non-world-readable). So the file is sitting there unprotected, and any of the other users could make a copy of the material if they happen to find it. If they do, is the original uploader then liable for distribution, same as if they had shared the work intentionally?

I scanned through what seemed to be the relevant parts of copyright law, e.g. 17 U.S.C 106, 501, and 506, and 512 but didn't find any clear statement on the topic. Section 506 says that willful infringement is required for a judgment of criminal copyright infringement, but what about a non-criminal judgment?

If there has been an actual court case testing similar circumstances, I would love to have a reference to it, but I'm also interested in links to speculation from legal experts or other relevant resources.

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That is intentional distribution.

In this scenario, the uploader intentionally placed the file where they knew that others had access to it. This violates the author's right to control the "making available" of the work.

The concept of "making available" in copyright law most frequently seems to come up in relation to WIPO treaties that require the recognition of such a right. The WIPO states that:

The relevant act is the making available of the work by providing access to it.

The US Copyright Office has assessed the degree to which US copyright law enforces this right, and concluded that it does:

...the making available right covers the offering of on-demand access to a work to the public, regardless of whether there is evidence of actual receipt...

Assessing U.S. law in light of this understanding, the Office concludes that no statutory change is needed at this time from a treaty perspective.

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  • Thanks. In the situation I'm imagining, the uploader would not have been thinking about the fact that the file would be available to others. Their only purpose in uploading the file was for their own personal use. (I'll clarify the question accordingly) While that certainly could mean the act is illegal, are you sure it's accurate to characterize it as intentional distribution despite the uploader having no intent for other people to access the file? I will review that report you linked but it'll take a while to get through it :-)
    – David Z
    Commented Aug 17, 2020 at 1:07
  • A relevant example would be almost anyone sued for the use of BitTorrent to acquire copyrighted content. Their specific intent isn't necessarily to share it (they just wanted to download it), but because most BitTorrent clients also upload the content that they have downloaded so far, they are still engaging in distribution. They aren't being sued for downloading, but instead for the distribution. I don't have a specific case handy, but I might be able to find one.
    – Ryan M
    Commented Aug 17, 2020 at 1:12
  • Interesting. I wouldn't have thought of that, but I see the parallel. In that situation, I suppose that if the person had gone to the trouble of disabling uploads (assuming their client allows that), it would fundamentally alter the character of the case, right? The equivalent in my example would be if the uploader thought to make the file non-world-readable. Anyway, if you happen to find a relevant case that would be great, but if not I really appreciate your answer.
    – David Z
    Commented Aug 17, 2020 at 1:16

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