So remember that court case we talked about a couple months ago, the one where the RIAA was saying that just making the files available equals infringement even if nobody downloaded them from you? Well, the RIAA lost. Big Victory in Atlantic v. Howell: Court Rejects RIAA "Making Available" Theory:
In its order (pdf), the court delivers the most decisive rejection yet of the recording industry’s “making available” theory of infringement (i.e., if someone could have downloaded it from you, you’ve violated copyright, even if no one ever did)…. [T]he court concludes that “[t]he general rule, supported by the great weight of authority, is that infringement of the distribution right requires an actual dissemination of either copies or phonorecords.” The court goes on to conclude that downloads by the recording industry’s own investigator, MediaSentry, are not enough to establish distribution, at least based on the facts of this case (Mr. Howell maintains that, unbeknowst to him, the Kazaa software was sharing his entire hard drive). Finally, the court also suggests that P2P file-sharing may not implicate the distribution right at all, reasoning that what is really going on is a series of reproductions.
This, of course, is going to be much harder, if not impossible, for the RIAA to prove.