While the ruling in the Elektra v. Barker case got plenty of attention, even if some of it was misleading
, the EFF points out that in another ruling on the same day (which got much less publicity) a court in Boston seems to have made a much stronger case for why making available is not distribution
. Once again, the judge did not throw out the case, saying that an "offer to distribute" is still enough of a claim to have the case move forward to trial (at which point the copyright holder would need to show that actual distribution occurred). However, with so many different court rulings making so many different interpretations of "making available," there are going to be appeals and eventually it will move up the chain. If (as is likely) different appeals courts end up disagreeing it may eventually make it to the Supreme Court, where we can get a final ruling on whether making available is or is not the equivalent of distribution.