One of the biggest questions facing both defendants and the RIAA in the record labels' legal campaign against P2P users is whether making a file available for download over a P2P network equates to distribution as defined under the Copyright Act. In a long-awaited ruling, a federal judge essentially validated the RIAA's position that having songs available in a KaZaA shared folder violates the distribution right under the Copyright Act.

The ruling came in response to Denise Barker's motion to dismiss a copyright infringement lawsuit brought against her in 2005. In denying the motion to dismiss, Judge Kenneth M. Karas sided with the RIAA's contention that merely offering a song for distribution is sufficient to infringe on the record labels' distribution right. "Having a file in a shared folder is enough to violate the law," EFF staff attorney Fred von Lohmann told Ars. (The EFF had filed an amicus curiae brief in the case.)

What's significant about the decision in Elektra v. Barker is that it is one of only two or three cases where the judge has heard arguments, been fully briefed, and asked to rule on this particular issue. There have been a handful of other rulings on the issue, but Judge Karas' ruling "represents the most extensive and serious treatment" of the issue, according to von Lohmann.

In his decision, Judge Karas focused on the "publication" right enumerated in the Copyright Act. "However, while the statute does not define 'distribute' or 'distribution,' it does define the term 'publication,'" wrote the judge in his decision. "The question before the Court, therefore, is whether the Court should look to the definition of the word 'publication' to construe the meaning of the term 'distribute' in Section 106(3) of the Copyright Act."

His conclusion is that Congress considered the two terms to be synonymous when it enacted the Copyright Act. "Although Plaintiffs have not adequately alleged that Defendant 'offer[ed] to distribute [Plaintiffs' copyrighted works]... for the purposes of further distribution,' Defendant's Motion still fails because Plaintiffs have adequately alleged that, in addition to making Plaintiffs' works available, Defendant distributed Plaintiffs' copyrighted works."

So even if the RIAA can't argue that making music in a shared P2P folder available is distribution, it does mean that the labels can allege that dropping songs into a KaZaA share is making an offer to distribute.

Von Lohmann called the decision well-reasoned, but unfortunate. "I understand how the court went wrong and the unfortunate result," he told Ars. "And he admits that his decision is not without disagreement; he understands the contours of the issue. But clearly, he really engaged the subject and read all of the law."

Ray Beckerman, who is representing Barker, called the ruling a mixed bag. "We're gratified to see the court reject the making available theory and disappointed to see that he didn't throw out the case altogether," he told Ars. "I think the ruling had some positive aspects to it and was also flawed." (Beckerman broke the story and the decision is available from his site.)

The RIAA is pleased with the ruling. "As we expected, the court rejected the defendant’s motion to dismiss and is allowing this case to proceed," RIAA spokesperson Cara Duckworth told Ars. "The court also agreed with the record companies that merely offering to distribute copies for the purposes of further distribution—even without an actual dissemination—can violate the distribution right."

There's at least one other case where a judge is expected to rule on the making available issue. The RIAA has a motion for summary judgment pending in Atlantic v. Howell, which was filed in 2006 and the EFF filed a brief opposing the RIAA's position in that case in January, with von Lohmann arguing the EFF's position in early March.

In the short term, today's ruling nudges Elektra v. Barker closer to a trial, unless she decides to settle or the RIAA drops its case for some unforeseen reason. Longer-term, von Lohmann sees some real problems arising from Judge Karas' decision. "I think the problem here is that it greases the wheels of the RIAA's litigation machine," von Lohmann said. "The RIAA's goal is to get from complaint to judgment as quickly as possible. So far the evidence that they have been able to cheaply amass is the shared folder, and if that's all you need to prove copyright infringement, then it's very, very easy for the RIAA to generate victories against large numbers of people."