ORDER
The court has before it Plaintiffs’ Motion for Summary Judgment. (Doc. # 30.) The Motion will be denied for the reasons set forth below.
I. Background
This is a suit for copyright infringement brought by seven major recording companies against Defendant Jeffery Howell (“Howell”) and his wife, who proceed pro se. At 1:52 a.m. Eastern Time on January 30, 2006, the recording companies’ private investigator, MediaSentry, logged on to the KaZaA file-sharing system and detected a user account with over 4,000 files available for download. (Doc. # 31, Ex. 11 ¶ 9.) MediaSentry took screenshots (images of a computer screen display) showing the files that were available for download from the user’s computer, many of which were sound recordings. (Doc. # 31, Ex. 10.) It is uncontested that the recording companies own registered copyrights in of those sound recordings. MediaSen-try downloaded 12 of the copyrighted songs from the computer. (Doc. # 63, Ex. A ¶ 6.) The recording companies’ expert determined that the music had originally been downloaded from other users on the Internet. (Doc. # 31, Ex. 12 ¶ 22.)
The recording companies traced the computer to Howell and his wife and filed this action for copyright infringement. At the close of discovery, they moved for summary judgment that Howell violated their exclusive right to distribute the 54 copyrighted sound recordings. They attached seven pages of their April 4, 2007 deposition of Howell. Their briefs maintained that Howell admitted at the deposition that “all of the sound recordings [at issue] were in the KaZaA shared folder that he created on his computer,” (doc. # 30 at 8), and that he made “the affirmative choice to use KaZaA to share files” (doc. # 38 at 3). The portion of the deposition that the recording companies provided appeared to support their allegation and Howell did not submit any additional portions of the deposition with his response. (Doc. # 31, Ex. 9.) The court granted the motion for summary judgment. (Doc. # 43.)
Howell then submitted a motion to reconsider, asserting that he had never stated that the sound recordings were in the publically accessible KaZaA folder (“shared folder”) and attaching portions of *979 the deposition that appeared to contradict the recording companies’ claim that he had admitted to sharing the sound recordings. (Doc. # 47.) The court granted his motion and called for further briefing. Additional portions of the Howell deposition later submitted by the recording companies showed that Howell had not, in fact, admitted to placing the sound recordings in the KaZaA shared folder:
Q: [Y]ou would agree with me that when KaZaA ran on your computer, you were automatically sharing your KaZaA files with anyone who wanted to download them?
[Howell]: Yes.
Q: And this includes any songs that you copied from your own CDs on to your computer that were placed in your KaZaA folder?
[Howell]: No. That should not have ever happened.
because it should have only been sharing the shared folder and in the shared folder was pornography and free to the public software, e-books.
Q: And why didn’t you place your music in your shared folder?
[Howell]: Because that’s not where it belongs. It belongs in my music folder.
Q: Now did you — were [the files being shared] files that you put in your Ka-ZaA program but not in a shared folder?
[Howell]: No. They had never had any — there was nothing to do with KaZaA whatsoever.
That’s what I’ve been pointing out ever since the very first conversation. It has files from my personal folder, from my music folder, from my shared folder and god knows else where.
Q: [A]nd you acknowledge now that you were sharing sound files on Ka-ZaA for anyone to download?
[Howell]: I was not, no. The computer was, but I was not.
The computer in some form, all right? Whether it was a malfunction of the program or a tampering by a third party or even Windows itself going back to a previous edition or whatever like that — made files that I did not know available on the Internet—
—which included music folder.
(Doc. # 80, Ex. A at 145-49.)
To summarize, Howell admitted that he created the KaZaA account and username that MediaSentry identified, that he installed the KaZaA file-sharing program on the computer, and that he authorized certain types of files to be shared through KaZaA. (Doc. ##31, Ex. 9 at 164-65, 208-10; 63, Ex. C at 139.) However, he denied having placed the copyrighted sound recordings in the KaZaA shared folder or having otherwise authorized sharing of those files. (Doc. # 63, Ex. C at 170.) According to Howell, the screen-shots taken by MediaSentry show that the KaZaA program was, without his authorization, granting public access to files on his computer that were not in the shared folder. (Id. at 173.) He also testified that there were other people who had access to the computer and the KaZaA user account that could be responsible for the recordings having been publicly available for download. (Id. at 99, 105, 162.) He further denied that he originally downloaded the copyrighted sound recordings through KaZaA. (Doc. #80, Ex. A at 182-83.) Rather, he claimed to own compact discs containing the sound recordings at issue and to have copied the recordings to his *980 computer for personal use. (Id. at 114-116.)
II. Standard of Review
Rule 56(c), Fed.R.Civ.P., provides that summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A “genuine issue” of material fact will be absent if, “viewing the evidence and inferences which may be drawn therefrom in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law.”
Jones v. Halekulani Hotel, Inc.,
The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of any genuine issue of material fact.
See Celotex Corp. v. Catrett,
Where the moving party has met its initial burden with a properly supported motion, the party opposing the motion “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc.,
III. Analysis
Under 17 U.S.C. § 501(a), “[plaintiffs must satisfy two requirements to present a prima facie case of direct infringement: (1) they must show ownership of the allegedly infringed material and (2) they must demonstrate that the alleged infringers violate at least one exclusive
*981
right granted to copyright holders under 17 U.S.C. § 106.”
A & M Records, Inc. v. Napster, Inc.,
A. Plaintiffs Have Established Copyright Ownership
The recording companies’ ownership of valid copyrights to the sound recordings is not in dispute. Affidavits establish that they held valid, registered copyrights effective prior to the date on which the sound recordings were found in the “jeepkiller@kazaa” shared folder. (Doc. # 31, Ex. 4-7.) In his deposition, Howell stated that he “[did not] agree with the law” that the recording companies own the copyrights, but he also “[did not] dispute that they own them.” (Doc. # 31, Ex. 9 at 252.) Thus, the first element of the recording companies’ claim of copyright infringement has been satisfied.
B. Plaintiffs Have Not Established Unlawful Distribution
Section 106(3) of the Copyright Act of 1976 grants to “the owner of copyright ... the exclusive rights 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.” 17 U.S.C. § 106(3). The statute does not define the term “distribute,” so courts have interpreted the term in light of the statute’s plain meaning and legislative history. The general rule, supported by the great weight of authority, is that “infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”
Nat’l Car Rental Sys. v. Computer Assocs. Int’l, Inc.,
The recording companies have provided evidence that their own investigator downloaded 12 of the copyrighted sound recordings from Howell’s computer. They have provided no evidence that their investigator or any KaZaA user ever downloaded any of the other 42 copyrighted sound recordings. Nevertheless, the recording companies argue that such evidence is unnecessary to prove a violation of their distribution rights under § 106(3). They assert that Howell violated their distribution right in the sound recordings merely by making them available for the public to copy.
1. Merely making a copy available does not constitute distribution
The recording companies primarily rely upon the decision of the Court of Appeals
*982
for the Fourth Circuit in
Hotaling v. Church of Jesus Christ of Latter-Day Saints,
The court disagreed. It acknowledged that ordinarily “a party must show that an unlawful copy was disseminated ‘to the public.’ ”
Id.
(citing
Nat’l Car Rental Sys.,
Our circuit has not applied
Hotaling
to impose directly liability on persons making unauthorized copies of copyrighted works available to the public through online file-sharing systems. The recording companies point to language
inA&M Records, Inc. v. Napster, Inc.,
where the court stated that “Napster users who upload file names to the search index for others to copy violate plaintiffs’ distribution rights.”
In a later case,
Perfect 10, Inc. v. Amazon.com, Inc.,
the court grouped the holdings of
Hotaling
and
Napster
together based upon a factual similarity; in both cases “the owner of a collection of works ... [made] them available to the public.”
District courts have struggled to determine whether the requirement to prove actual dissemination or
Hotaling
should apply to cases of alleged copyright infringement through online file-sharing.
Interscope Records v. Leadbetter,
No. C05-1149-MJP-RSL, 2007 U.S. Dist.
*983
LEXIS 29818, at *9-13,
Two courts have concluded that making a work available on a file-sharing network does constitute distribution.
Universal City Studios Prods. LLLP v. Bigwood,
The court agrees with the great weight of authority that § 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute “copies” of their works to the public “by sale or other transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). Unless a copy of the work changes hands in one of the designated ways, a “distribution” under § 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.
As
Hotaling
seems to suggest, evidence that a defendant made a copy of a work available to the public might, in conjunction with other circumstantial evidence, support an inference that the copy was likely transferred to a member of the public.
See London-Sire Records, Inc.,
2. An offer to distribute does not constitute distribution
The recording companies disagree, arguing that although the term “distribution” is not explicitly defined by the statute, it is synonymous with the term “publication,” which the statute defines to include “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” 17 U.S.C. § 101. Therefore, the argument goes, if Howell offered to distribute the copyrighted works to the public for purposes of further distribution, he distributed the works within the meaning of § 106(3). Some support for equating the two terms does exist.
The Supreme Court has observed that § 106(3) “recognized for the first time a distinct statutory right of first publication, which had previously been an element of the common-law protections afforded unpublished works.”
Harper & Row Publishers, Inc. v. Nation Enters.,
As one court has put it, the definition of publication in § 101 of the statute makes clear that all distributions to the public are publications, but it does not state that all publications are distributions. LondonSire Records, Inc., 542 F.Supp.2d at *168-69. The statute’s definition of “publication” includes “distribution of copies ... to the public” and “offering to distribute copies ... for purposes of further distribution.” The inverse proposition, that all “publications” are “distributions,” appears nowhere in the statute or the legislative history. Moreover, the definition of “publication” in § 101 is truly unhelpful in explicating the meaning of the term “distri *985 bution” used in § 106(3). Read as the record companies suggest, the definition would state that a “distribution” is a “distribution” or an “offering to distribute.” One cannot assume that the terms are absolutely synonymous in the face of such an unsatisfactory definition.
The scope of the term distribution is only defined within § 106(3) itself, as a “sale or other transfer of ownership” or a “rental, lease, or lending” of a copy of the work. The plain meaning of that section requires an identifiable copy of the work to change hands in one of the prescribed ways for there to be a distribution. It is untenable that the definition of a different word in a different section of the statute was meant to expand the meaning of “distribution” and liability under § 106(3) to include offers to distribute. Courts should not impute such an oblique method to Congress. Rather, courts are to give meaning to Congress’ choice to use the word “distribution” in § 106(3) rather than the expressly defined term “publication.”
See Padash v. INS,
3. Howell may not be responsible for any distribution
The recording companies’ investigator, MediaSentry, did download 12 of the copyrighted sound recordings from Howell’s computer. The recording companies assert that they have proven actual distribution for at least those 12 recordings. Amicus curiae, Electronic Frontier Foundation (“EFF”), responds that a copyright owner cannot infringe its own copyright, so its agent also cannot infringe the copyright owner’s rights when acting on the owner’s behalf. But the recording companies obviously did not intend to license MediaSentry to authorize distribution or to reproduce copies of their works. Rather, “the investigator’s assignment was part of [the recording companies’] attempt to stop [Howell’s] infringement,” and therefore the 12 copies obtained by Media-Sentry are unauthorized.
Olan Mills, Inc. v. Linn Photo Co.,
*986 Nevertheless, the record in this case does not conclusively indicate that Howell was responsible for making the 12 downloaded recordings publicly available. A reasonable trier of fact could conclude that it was Howell who placed the copyrighted files into his shared file folder; Howell admitted that he downloaded KaZaA onto the computer, that he created the KaZaA user account through which the files were made available to the public, and that he authorized sharing other types of files. On the other hand, Howell has sworn that he did not place the copyrighted sound recordings in the shared folder, has testified that other users of the computer could be responsible, and has identified evidence purportedly showing that the KaZaA program was, without his authorization, making files not in the shared folder available for download. Viewing all the evidence in the light most favorable to Howell, there exists a disputed issue of fact regarding Howell’s responsibility for sharing the files. Accordingly, the recording companies’ motion for summary judgment is also denied with respect to the 12 copies downloaded by MediaSentry.
4. Insufficient evidence of primary versus secondary liability
The recording companies motion for summary judgment also fails because they have not proved that a KaZaA user who places a copyrighted work into the shared folder distributes a copy of that work when a third-party downloads it. Under their theory, a KaZaA user transfers a copy of the work to a third party and is therefore liable as a primary infringer of the distribution right. However, in the KaZaA system the owner of the shared folder does not necessarily ever make or distribute an unauthorized copy of the work. The owner certainly does not distribute the copy that resides in the shared folder, for that copy never leaves its location on the owner’s hard drive. Rather, a copy of the copy in the shared folder is made.
If the owner of the shared folder simply provides a member of the public with access to the work and the means to make an unauthorized copy, the owner is not liable as a primary infringer of the distribution right, but rather is potentially liable as a secondary infringer of the reproduction right.
See
Patry, supra, § 13:11.50 at 13-26 to 13-27 (explaining that technically, “third parties are reaching into the individuals’ hard drive and taking an electronic file,” so “the individual who has the work on his or her hard drive [can potentially be sued] for contributory infringement of the reproduction right” but not primary infringement of the distribution right). The courts and commentators have recognized that making a copyrighted work and the facilities to copy it available to another implicates contributory, not direct, liability for copyright infringement. 3 Nimmer, supra, § 12.04[A][3][b], at 12-87 (2007). For example, where a business rents customers video cassettes and a room for viewing the cassette, the business is liable for contributory infringement, not direct infringement, of a copyright holder’s public performance right.
Columbia Pictures Indus., Inc. v. Aveco, Inc.,
The recording companies’ motion is based solely on Howell’s direct liability for violating the distribution right. Their motion fails because they have not explained the architecture of the KaZaA file-sharing system in enough detail to determine conclusively whether the owner of the shared folder distributes an unauthorized copy (direct violation of the distribution right), or simply provides a third-party with access and resources to make a copy on their own (contributory violation of the reproduction right).
See A & M Records v. Napster, Inc.,
Furthermore, if contributory liability applies, the recording companies must still prove that a third-party actually obtained an unauthorized copy of the work to impose liability on Howell. The statutory basis for such contributory liability is found in the Copyright Act of 1976’s provision to a copyright holder of the exclusive rights “to do and to authorize” certain acts listed in § 106, including distribution. 17 U.S.C. § 106. Our circuit has noted that use of the phrase “ ‘to authorize’ was simply a convenient peg on which Congress chose to hang the antecedent jurisprudence of third party liability.”
Subafilms, Ltd. v. MGM-Pathe Commc’ns Co.,
IV. Conclusion
The court is not unsympathetic to the difficulty that Internet file-sharing systems pose to owners of registered copyrights. Even so, it is not the position of this court to respond to new technological innovations by expanding the protections received by copyright holders beyond those found in the Copyright Act.
The judiciary’s reluctance to expand the protections afforded by the copyright without explicit legislative guidance is a recurring theme. Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology. In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests.
Sony Corp. of Am. v. Universal City Studios, Inc.,
IT IS THEREFORE ORDERED that the Motion for Summary Judgment (Doc. # 30) is denied.