One of the biggest bones of contention between the RIAA and file-sharing lawsuit defendants has been whether making a file available to others constitutes distribution of the file.
In other words, if I drag a song about a tree falling in the woods into my Kazaa "shared files" folder but there's no proof that anyone downloaded it, have I committed copyright infringement?
In most cases, the answer has been yes. Judge Neil V. Wake, presiding over Atlantic vs. Pamela and Jeffrey Howell, bucked that trend by denying the RIAA's motion for summary judgment in that case
According to him, just because the RIAA's investigative partner MediaSentry was able to download 12 copyrighted songs from the Howell's Kazaa account at two in the morning on January 30, 2006, doesn't necessarily mean that other people were downloading the songs too. In fact, the judge held, there is no proof that the couple distributed copyrighted songs to anyone except the MediaSentry investigator.
clipped from: blog.wired.com