applications do not require a central server or use of email. Rather, the file-sharing
application allows two or more users to essentially have access each other’s computers
and to directly swap files from their computers. Some file-sharing programs require a
user to designate files to be shared during the installation process, meaning that at the
time of installation the user can “opt in” to share files, and the software will automatically
scan the user’s computer and then compile a list of files to share. Other programs employ
a default file-sharing setting, meaning the user can “opt out” of automatically sharing
files by changing the default setting to limit which, if any, files are available for sharing.
Once the user has downloaded and set up the file-sharing software, the user can begin
searching for files shared on the connected network using search keywords in the same
way one regularly uses a search engine such as Google. Users may choose to “opt in” for
a variety of reasons, including, for example, to obtain faster download speeds, to have
access to a greater range of material, or because the particular site mandates sharing.
The 2-Level Distribution Enhancement
The circuits have reached different conclusions regarding whether application of the 2-
level distribution enhancement at §2G2.2(b)(3)(F) requires a mental state (mens rea),
particularly in cases involving use of a file-sharing program or network. The Fifth,
Tenth, and Eleventh Circuits have held that the 2-level distribution enhancement applies
if the defendant used a file-sharing program, regardless of whether the defendant did so
purposefully, knowingly, or negligently. See, e.g., United States v. Baker, 742 F.3d 618,
621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013); United
States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015). The Second, Fourth, and Seventh
Circuits have held that the 2-level distribution enhancement requires a showing that the
defendant knew of the file-sharing properties of the program. See, e.g., United States v.
Baldwin, 743 F.3d 357, 361 (2d Cir. 2015) (requiring knowledge); United States v.
Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (knowledge); United States v. Layton, 564
F.3d 330, 335 (4th Cir. 2009) (knowledge or reckless disregard). The Eighth Circuit has
held that knowledge is required, but knowledge may be inferred from the fact that a file-
sharing program was used, absent “concrete evidence” of ignorance. See United States v.
Dodd, 598 F.3d 449, 452 (8th Cir. 2010). The Sixth Circuit has held that there is a
“presumption” that “users of file-sharing software understand others can access their
files.” United States v. Conner, 521 Fed. App’x 493, 499 (6th Cir. 2013); see also United
States v. Abbring, 788 F.3d 565, 567 (6th Cir. 2015) (“the whole point of a file-sharing
program is to share, sharing creates a transfer, and transferring equals distribution”).
The amendment generally adopts the approach of the Second, Fourth, and Seventh
Circuits. It amends §2G2.2(b)(3)(F) to provide that the 2-level distribution enhancement
applies if “the defendant knowingly engaged in distribution.” Based on testimony, public
comment, and data analysis, the Commission determined that the 2-level distribution
enhancement is appropriate only in cases in which the defendant knowingly engaged in
distribution. An accompanying application note clarifies that: “For purposes of
subsection (b)(3)(F), the defendant ‘knowingly engaged in distribution’ if the defendant
(A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded,
induced, procured, or willfully caused the distribution, or (C) conspired to distribute.”