A federal trial judge in San Francisco presiding over the Napster copyright litigation has just clarified that the Artists' Rights and Theft Prevention Act of 2005 does not establish that the operator of a peer-to-peer Internet file-sharing service who maintains and posts on the Internet an index of downloadable files embodying copyrighted sound recording and musical compositions infringes on the copyright owners' distribution rights.

The Artists' Rights and Theft Prevention Act of 2005 (the ART Act) was signed into law last month. Section 103(a) of the ART Act creates criminal liability for certain acts of willful copyright infringement, including the willful infringement of a copyrighted work that is "being prepared for commercial distribution."

The ART Act specifically provides at Section 103(a)(1)(C) that "[a]ny person who willfully infringes a copyright shall be punished. .. if the infringement was committed. .. by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution."

An issue arose in the Napster litigation as to whether the operator of a peer-to-peer file sharing service who maintains an index of downloadable files embodying copyrighted sound recordings and musical compositions distributes those works within the meaning of Section 106(3) of the Copyright Act.

The argument was made that the unauthorized posting of such a file-name index on the Internet makes copyrighted works available to members of the public, constitutes infringement of the copyright owners' distribution rights, and that the "making. .. available" language of Section 103(a)(1)(C) of the ART Act supports this argument.

Judge Marilyn Hall Patel found this argument "unpersuasive." She ruled that the ART Act does not amend Section 106(3) of the Copyright Act.

According to Judge Patel, "if Congress wanted to make clear that the distribution right was broad enough to encompass making a work available to the public without proof of actual distribution, it is perfectly capable of doing." However, nothing was identified in the legislative history of the ART Act, or in the statute itself, that "suggests Congress' intent to clarify Section 106(3) in such a manner."

Thus, the first judge who has been called upon to rule on the issue has determined that the ART Act does not create copyright infringement liability for simply making copyrighted works available to the public without evidence of true distribution of those works.

Of course, this decision ultimately could be appealed in the Napster case, and other federal courts are not bound by the decision of one trial judge. Yet, they too, might find a lack of support for the argument that Judge Patel just rejected.

Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at . To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to .

Reprinted here with permission from USAToday.com.