While much of the attention paid to the RIAA's case against Jeffrey Howell has been on the incorrect
assertion that the RIAA was claiming Howell infringed simply for ripping his own CDs, what the RIAA is
actually claiming is still quite questionable. What it was really claiming was that simply by putting any files (ripped or downloaded) into a shared folder, he was infringing
. This is the same "making available" theory that the RIAA has been pushing for quite some time -- despite having courts clearly say that making available is not infringement
. Of course, by constantly pushing this point in case after case (and usually losing), the RIAA has found a few judges who agree
-- though, it almost always comes in cases where the defendant is acting as his or her own lawyer, rather than having a real lawyer defend the case. The key question is what part actually constitutes infringement. Is it actually having the copy made, or just offering the file up? With most courts agreeing that the actual act of making the copy has to occur, the EFF has filed an amicus brief in the Howell case
, notifying the judge of all the various cases where "making available" has been rejected as being infringement.