It started last month, when Capitol v. Thomas U.S. District Court Judge Michael J. Davis publicly stated that he is mulling a redo of the lawsuit that put Minnesota resident Jammie Thomas on the hook for $222,000. The case's outcome -- the first of its kind to be entered by a jury -- was based in part around a jury instruction that making copyrighted material available for download, even if nobody downloaded it, was grounds for copyright infringement. Judge Davis said he was "mislead" into including that directive, as both sides failed to bring an essential 1993 8th Circuit Court of Appeals ruling to his attention which dictated that copyright infringement requires "actual dissemination."

Cases in Arizona and Florida have similarly ruled against the "making available" theory.

The Electronic Frontier Foundation, responding to Davis' public request for comment, attacked not only the case's possibly-erroneous "making available" ruling, but the RIAA's other, more accepted tactic of filing claims based off the work of its own investigators as well. "An infringement ... requires [the] copyright owner demonstrate an actual dissemination of the copyrighted work at issue," reads its brief (PDF), and "evidence derived from the activities of Plaintiffs’ own investigators cannot suffice to establish a completed transfer."

Lawyers for the MPAA, which filed an amicus curiae brief of their own, opposed the EFF's assessment (PDF) of it and the RIAA's tactics. "Making available" should serve as sufficient evidence of infringement, wrote the MPAA's attorneys, because collecting a sufficient level of proof is nearly impossible given the nature of today's P2P applications.

Further, argues the MPAA, language in the 8th Circuit decision was quoted "from a single [international] treatise" and the case as a whole, which was based around unagreed usage of licensed software (National v. Computer Assoc. Int'l, Inc.) bears little resemblance to pirates that share music on P2P networks.

The Copyright Act "provides copyright owners with a broad right of distribution, not simply 'actual distribution;' and the act of making copyrighted works available over a P2P network or otherwise is included within that broad right," reads the MPAA's brief.

While investigators were able to successfully transfer and verify pirated music from Thomas' computer -- music found on her computer bore identical fingerprints to known pirated mp3s -- a large portion of the decision entered against her revolved around the "making available" jury instruction.

Oral arguments on whether or not a new trial should be started are set for July 1 in Duluth, Minnesota.