The terms distribution and publication are not synonymous. By the plain meaning of the statute, all distributions to the public are publications. But not all publications are distributions to the public--the there is an additional category of publications that are not themselves distributions.
London-Sire Records, Inc. and several other record companies brought suit for copyright infringement against defendants college students who allegedly used "peer-to-peer" file-sharing software to download and disseminate music without paying for it. The companies sought to discover defendants' identities through the use of subpoenas to their internet service providers (ISPs). Three defendant college students sought to quash the subpoenas on the ground that the distribution right was limited to physical, tangible objects.
Was the distribution right limited to physical, tangible objects?
In determining how to balance the harms in a context of a motion to quash a subpoena, the court adopted the approach of the United States District Court for the Southern District of New York in Sony Music Entm't v. Does 1-40. This approach examined five factors. Two rights reserved to a copyright holder were at issue in the case: the right to reproduce the copyrighted work in copies or phonorecords and the right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The court was able to draw from the complaint and the record a reasonable inference in the companies' favor, that where a user had completed all the necessary steps for a public distribution, a reasonable fact-finder could infer that the distribution actually took place. The court rejected defendants' contention that the distribution right was limited to physical, tangible objects. Granting two motions to quash, the court required that the subpoena served on the university be modified.