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 preferences or policy judgments, it seems quite clear that the role of the courts in the copyright arena is not, and properly should not be, so limited. To the contrary, the text and history of federal copyright legislation in the United States have made the courts more coequal partners than mere servants of the legislature.

The courts would face a nearly insurmountable task in striving to apply the Copyright Act strictly as written, for the statute includes provisions that simply cannot be enforced according to their literal terms. The statute’s simultaneous grants of overlapping rights to multiple parties without expressly ranking their relative priority have raised challenging questions of policy for the courts. Elsewhere, the statute leaves pivotal terms entirely undefined. See, e.g., Lindsay v. R.M.S. Titanic, 52 U.S.P.Q.2d 1609, 1612 (S.D.N.Y. 1999) (construing the undefined statutory term “author”). Congress’s choice not to supply a definition of this key term in appears to have been deliberate, in light of the litigated controversies over the meaning of “authorship” that predated the Copyright Act of 1976. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57-58 (1884).

The Copyright Act grants copyright holders the exclusive right “to distribute copies or phonorecords of the copyrighted work to the public.” (3) (2006). The statute is silent, however, on the meaning of the term “distribute,” which has, predictably, resulted in conflicting interpretations by the courts. Compare A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (reasoning that users of file-sharing software violated distribution right by “upload[ing] file names to the search index for others to copy”), and Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) (reasoning that a public library violated distribution right by “add[ing] a [copyrighted] work to its collection, list[ing] the work in its index or catalog system, and mak[ing] the work available to the borrowing or browsing public”), and Marobie-FL, Inc. v. Nat’l Ass’n of Fire Equip. Distribs., 983 F. Supp. 1167, 1173 (N.D. Ill. 1997) (placing copyrighted files on a web server from which they may be downloaded by others constitutes “distribution”), with Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007) (agreeing with district court that “distribution requires an actual dissemination of a copy”) (quotation marks omitted), and Atlantic Recording Corp. v. Howell, 554 F. Supp. 2d 976, 983 (D. Ariz. 2008) (“Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”), and Elektra Entm’t Group, Inc. v. Barker, 551 F. Supp. 2d 234, 244-45 (S.D.N.Y. 2008) (holding complaint’s allegation that defendant “made . . . [c]opyrighted [r]ecordings available for distribution to others” insufficient to allege violation of the distribution right) (internal quotation marks, citation, and alteration omitted). For a critique of the courts’ expansion of the distribution right to include transmissions of copyrighted works over the Internet, see R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected Solution to the Controversy Over RAM “Copies”, 2001 83, 125-38.

In (a), Congress listed eight nonexclusive categories of copyrightable subject matter. Although five of the categories carry accompanying definitions in, “musical works,” “dramatic works,” and “pantomimes and choreographic works” do not. (a)(2)-(4) (2006). Congress explained the omission by remarking that these terms “have fairly settled meanings.” 94-1476, at 53 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5666-67. The nature of the text to