Is Making a Song Available Via the Internet An Act of Copyright Infringement?

No, not really.  But it can survive the pleadings.

A number of Record Companies asserted their rights against a number of Accused Infringers.  The rights at issue relate to a number of sound recordings, 25 of which were recorded before 1972, and 600 or so recorded afterwards.  In late 2012 the Record Companies notified the Accused Infringers that "there were hundreds of links to Internet videos posted" by the Accused Infringers which allegedly contained material protected by the Record Companies' copyrights.

The attempts to resolve the disputes prior to litigation did not work, so the Accused Infringers sued the Record Companies.  The Record Companies asserted counterclaims for copyright infringement.  The Accused Infringers sought dismissal on a number of grounds:

Public Performance
The Accused Infringers argued that there could not be any violation of a right to "public performance" because the "public performance" limitation only applied to musical works, not the audiovisual works that were at issue.  The Court was not persuaded:

Initially, the Court is not persuaded that the definition of “digital audio transmission” definition set forth in § 114(j) (5) is applicable to an infringement analysis under § 106(6) because the Act cautions that the terms the § 114(j) definitions are only for use in § 114.  See 17 U.S.C. § 114(j) ("As used in this section, the following terms have the following meanings....”); see also, Creative Non-Violence v. Reid, 490 U.S. 730, 748 n. 14 (1989) (noting that courts must strictly adhere to the language and structure of the Copyright Act); Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432 (1984) (requiring circumspection when construing the Copyright Act and adherence to the Act's concern for the general public good).

Further, applying the § 114(j)(5) definition in the manner urged by Amway is contrary to the admonition in § 103(a) that “copyright protection in preexisting material is not affected by use of such material in a “work that is based upon one or more preexisting work” such as a sound recording. See id. § 101 (defining “derivative works”). Indeed, copyrights in a preexisting work are “completely independent of” an audiovisual work that incorporates the preexisting work.” See Traicoff v. Digital Media, Inc., 439 F. Supp. 2d 872, 883 (S.D. Ind. 2006) (noting that “the copyright of an independent and preexisting sound recording” cannot be invalidated by “incorporating” the sound recording “into an audiovisual work”). 

Here, the Registered Recordings are “preexisting material” that must be distinguished from any audiovisual works in which they are incorporated—including the Accused Videos.  Stewart, 495 U.S. at 216–17 (rejecting argument that Court should “read into the Copyright Act a limitation on the statutorily created rights of the owner of an underlying work”). Accordingly, the Court rejects Amways' argument that—based on § 114(j)(5)—the Record Companies' “public performance” claim under § 106(6) fails as a matter of law.

Making the Work Available
Is "making the work available" a violation under the Copyright Act?  Technically, no.  But the Court did not need to dismiss this portion of the claim on pleading grounds, as there is still liability under the vicarious liability theories:

Although the Court agrees that the Act does not confer a “making available” copyright under § 106, the Court does not agree that relief is warranted under Rule 12(b)(6). Notably, the act of making a copyrighted work available for the use of a direct infringer is relevant to the Record Companies' indirect infringement claims against Amway. See Atlantic Recording Corp. v. Howell, 554 F.Supp.2d 976, 983 (D. Az. 2008); Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1225 (D. Minn. 2008) (stating that although dissemination needs to be proven to meet the distribution standard in the act, the proof need not be direct and can come from circumstantial evidence). Thus, the Motion is due to be denied with respect to Amway's “making available” argument. See Warner Bros. Records, Inc. v. Payne, 2006 WL 2844415, *2 (W.D. Tx. 2006) (declining, at the pleading stage, to reject “making available” theory a possible ground for imposing liability).

Public Performance Under Florida Common Law
Like the "making available" issue above, the Court noted that Florida common law did not recognize a cause of action for public performance right with respect to a sound recording, but determined it was not necessary to dismiss such claim on the pleadings.

Unidentified Parties - Does 1-20
The Accused Infringers last sought dismissal of the 20 parties identified only as Does 1-20.  The Court did not find this necessary:

In a footnote, the Amway Interests argue that the Court should dismiss Does 1 through 20 because fictitious party pleading is disallowed in federal courts. (See Doc. 113, p. 1 n.1.) Federal Rule of Civil Procedure 10(a) requires that the title of a complaint include the names of “all the parties,” and the U.S. Court of Appeals for the Eleventh Circuit discourages fictitious party pleading as a practice that is contrary to the public's right in open judicial proceedings. See Roe v. Aware Woman Center for Choice, Inc., 253 F.3d 678, 684–85 (11th Cir. 2001). Nonetheless, reference to a fictitious party may be permitted if it is mere “surplusage” (see Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)), or the fictitious party will be identified through discovery (see Tracfone Wireless, Inc. v. Access Telecom, Inc., 642 F. Supp. 2d 1354 (S.D. Fla. 2009)). 

Here, the Does 1 through 20 are effectively identified for pleading purposes based on the Record Companies' identification in Tables 1 through 4 of specific creators and uploaders of the Accused Videos. Identification of the Doe Defendants is further discerned based on the IBOs named as Defendants in the 2045, 1511, and 776 Actions. Thus, under the unique circumstances presented here, the Court does not find it necessary to strike Does 1 through 20 under Rule 12(f) or to dismiss any claims based on Rule 10(a). See Weiland v. Palm Beach County Sheriff's Office, 792 F.3d 1313, 1318, n.4 (11th Cir. 2015) (noting that the court had simply ignored the improperly named fictitious parties).

Motion to dismiss counterclaims, denied.
Alticor, Inc. v. UMG Recordings, Inc., Case No. 6:14-CV-542 (M.D. Fla. Dec. 11, 2015) (J. Dalton)