The Recording Industry Association of America says a New York judge's ruling earlier this week really wasn't much of a setback for them. In fact, they say they don't mind it much at all.
This is my article from Tuesday to which the RIAA is responding. And here's e-mail from Wednesday that I was asked to attribute to the RIAA's lawyers, which I've reproduced in full:
The statement in the very first sentence of the posting that the court requires the record companies 'to demonstrate that unlawful copying took place' is entirely inaccurate and is precisely the opposite of what the court held. The court specifically held that proof of actual copying or actual dissemination is not required, and that simply making the work available for copying can be a distribution as long as the work was offered 'for purposes of further distribution.' Contrary to the thrust of the article, the court did in fact agree with the record companies that "making available" a copyrighted work under those circumstances is an infringement. But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire "making available" issue irrelevant.
It's true that U.S. District Judge Kenneth Karas said that an "offer to distribute" can amount to a distribution (which helps the RIAA). But Karas rejected the RIAA's argument that a Kazaa user who "made available" copyrighted music necessarily violated the law.
The RIAA has served up its "making available" argument in other cases too, including the Jammie Thomas lawsuit that resulted in a $222,000 jury verdict last October. Here's some more detail on why they've been enthusiastic about it.
Whether the RIAA now stands a worse chance of winning in the New York case depends on the distance between their "made available" and "offer to distribute" arguments. For that we'll need to wait to see the group's revised complaint--they have 30 days to submit it--and the court's next ruling.
Update: Fred von Lohmann at the Electronic Frontier Foundation points me toward his writeup of a separate ruling from a judge in Boston, who said that the RIAA must show actual distribution, and "making available" or "offer to distribute" won't do. But it was just a preliminary ruling, so stay tuned for more.