The decision set many tech blogs buzzing. The "making available" theory -- that merely making content available in a publicly accessible place online constitutes infringement -- has helped the RIAA to win some cases against P2P users. Judge Wake, a district court judge in Arizona, rejected the theory in denying Atlantic Records (part of Warner Music Group) and other plaintiffs' motion for summary judgment against the Howells. Unless the case settles, it will now go to trial for a fuller airing of legal arguments and a closer look at the evidence -- and the Howells' hard drive.

The decision is really less important than many commentators have declared. Even if upheld, loss of the "making available" theory would not end lawsuits against P2P users; it would simply mean that copyright owners must produce somewhat more evidence, something they have done successfully in most other cases.

But the RIAA has declared the ruling "strange." Is this just sour grapes or is there something to this? There is more going on than meets the eye of the casual blog reader. District court judges do not often blaze new legal ground. No one wants to be overturned on appeal. This case is worth a closer look.

Judge Wake's opinion involves three key decisions. First, while the copyright owner's agent, MediaSentry, had downloaded some of the copyrighted works on the Howell's computer, Judge Wake emphasized that no evidence was produced that the named defendants were responsible for the availability of the files. Second, the availability of the files themselves to other downloaders, the court ruled, did not constitute a distribution. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution."

But what about the exclusive right of publication, a form of "making available" which the Supreme Court decided in Harper v. Row was the same as "distribution?" Judge Wake noted that "publication" in that case was a first publication, suggesting, rather oddly, that other kinds of publication might be treated differently.

First, it is likely that the judge is irritated (to put it mildly) with the attorneys for the copyright owners, who represented in filing for summary judgment that Jeffrey Howell had admitted that he had placed the musical works in question in a Kazaa shared directory. In fact, as a transcript of the deposition showed, he made no such admission. This may turn out to be the first case that clearly presents the question of a user's liability, when the user's works were shared because the user failed to realize that Kazaa might have placed all his personal files in a shared directory (although as of 2003, Kazaa is unlikely to do this by default). Under the circumstances, it would have been odd for the judge to grant summary judgment.

And, the rule of thumb that judges are unlikely to use their discretion to favor those who distort evidence, deliberately or otherwise, will continue to operate. That rule seems to be at work in several other cases decided in copyright owners' favor. There, defendants such as Jammie Thomas had replaced or wiped their hard drives, relying on what might be described as a theory of "making unavailable."

Depending on further evidence and legal argument, the copyright owners may yet win this case. The judge's order leaves several key legal issues still undecided. We are unlikely to see the end of the "making available" theory, which is pretty well rooted in other cases. But one may hope that this case brings to an end the casual treatment of evidence by either side.

Solveig Singleton is a lawyer, writer and an adjunct fellow with the Institute for Policy Innovation.