The make-available theory of copyright infringement, based on the infringer’s passive conduct, is being used by plaintiffs against companies whose websites host image libraries.
The weight of case authority strongly suggests that at least active conduct by an alleged infringer involving actual dissemination (like file-sharing or interactive music streaming) is required to demonstrate a claim for direct infringement.
There is a growing effort to apply this theory outside of file-sharing situations.
Courts generally identify two elements of a claim for copyright infringement: (1) ownership of a valid copyright and (2) violation of one of the exclusive rights given to copyright owners. To win a claim for direct copyright infringement, a plaintiff must show they own a valid copyright and that the defendant copied, distributed, reproduced, or performed protected elements of that work.
Most courts require copyright plaintiffs to prove the defendant engaged in willful conduct that caused direct infringement. This conduct requirement comes from a 1995 case where a user of an internet service provider posted copyrighted content that was automatically copied by the internet provider’s software. The court rejected the claim for direct infringement. The court said that although copyright is a strict liability statute, there should be some element of volition or causation, which is lacking where a defendant’s system is merely used to create a copy by a third party.
Numerous courts have adopted that reasoning.
A copyright holder suing under the make available theory shows direct infringement by demonstrating the defendant made the work publicly available, even where the work was not displayed, sold, or actively distributed by the defendant. Some courts have recognized the existence of the theory but refused to apply it. In the digital image hosting context, some courts have declined to apply the make available theory where the alleged infringer did not communicate the purportedly infringing hosted images to the computers of those who used the website’s search engine.
The make-available theory was a solution for the problems created by music file-sharing platforms. In those settings, an individual may have had music files licensed for individual use residing on a server connected to a file-sharing platform that allowed third parties to access the server to make unlicensed copies of the music files. There, the original licensee did not display, copy, or distribute the copyrighted material. They made it available for others to find, usually through an index provided by the file-sharing platform. Many Courts found infringement in this context.
Plaintiffs are now filing suit for direct infringement against companies whose websites passively host content that a third party might find if they look in just the right place. It is not clear whether courts will expand the make-available theory to cover these scenarios.
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