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"Making Available" in P2P Networks = Distribution
Two U.S. federal courts have issued two opposite rulings on whether exposing music files to the Internet through peer-to-peer networks constitutes copyright infringement.
On March 31, Judge Kenneth Karas of the New York District Court ruled that an “offer” to distribute a file through a P2P network can infringe copyright, even if no one actually downloads it. According to Judge Karas, leaving a file in a shared music folder constitutes “making available” and violates the copyright holder’s distribution right. But the same day, in a separate RIAA lawsuit, Massachusetts District Court Judge Nancy Gertner ruled that "merely exposing music files to the Internet is not copyright infringement". Her 52-page ruling held that “distribution” and “publication” are not synonymous under the statute, and therefore an “offer to distribute” does not infringe the distribution right.
Although lawyers for the defendants in the Massachusetts case, who are students from Boston University, hailed it as a “landmark decision”, the RIAA was quick to note that this was only a pre-trial ruling. The judge also held that evidence of an "offer to distribute" is enough to establish a prima facie case and allow a lawsuit to move forward.
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