Contrary to popular opinion (partly due to a misunderstanding press that will often repeat this myth), the various lawsuits regarding file sharing have never been about an individual downloading
unauthorized copyright-covered works, but in uploading
them. Amusingly, there are some legal experts who point out that a clear reading of copyright law in the US actually suggests that uploading is perfectly legal
, while downloading may not be. Either way, the entertainment industry has focused on going after people for uploading (specifically: distributing) unauthorized materials. And that has resulted in an ongoing legal debate over the question of whether or not simply making something available
is the equivalent of distribution under the law. There have been a few court rulings on either side of this question, but the trend seems to be leaning towards the fact that making available is not the equivalent of distributions. That would be a problem for the recording industry, as it would then need to prove actual unauthorized distribution, which could be quite difficult.
That said, in one case, it may be facing an even bigger uphill battle. That's because it charged someone with distributing/uploading content, despite the fact that he'd modded his file sharing software to not allow any uploads
. It's difficult to see how they can get him for even "making available" given that he set up the software in a way to not actually make anything available at all. But, of course, given how much the entertainment industry relies on flimsy evidence
, it's probably no surprise that it didn't even check to see if this guy was making any files available before charging him with doing so.