EFF weighs in on "making available"

These two arguments are brilliant! First, Making Available == distribution:

It claims that the right "to distribute copies or phonorecords of the copyrighted work to the public" granted in the Copyright Act means that an actual distribution must be proven. This is a more demanding standard of evidence than simply showing a judge that copyrighted files exist in a user's shared file folder on a P2P network.

One of the key parts of this claim is that Congress showed in other laws that it could be quite clear about granting a "making available" right when it wished to do so. The fact that the Copyright Act doesn't include such language should be taken as an obvious sign that just attempting to distribute a work cannot be considered copyright infringement, said the EFF.

Second Media Sentry == the public:

"It is axiomatic that a copyright owner cannot infringe her own copyright," says the brief in its concluding section. "By the same token, an authorized agent acting on behalf of the copyright owner also cannot infringe any rights held by that owner. Accordingly, where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place."

Read the full story on ars technica.

MPAA Says No Proof Needed in P2P Copyright Infringement Lawsuits

Never mind "innocent until proven guilty" when it comes to copyright infringement according to the MPAA.

"Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances," MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

"It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement," van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

Red the full story on Wired.com.