Is making music “available” through a shared folder actually copyright infringement? That question has been especially important in P2P legal cases and is actually the legal theory that the RIAA’s attorneys relied on in the Jammie Thomas case, which led to $222,000 in penalties in October. In the past few weeks a couple of rulings have addressed the matter coming to some differing conclusions and signaling just how unsettled the entire issue remains.

While a New York court in the Elektra v. Barker case gave a boost to the recording industry by ruling that an “offer to distribute” a file on a P2P network can infringe the distribution right that copyright holders have – even if no one ever actually downloads the file – on that same day another court ruled just the opposite, holding that “merely exposing music files to the internet is not copyright infringement.” Though the latter decision may seem like a big setback for the RIAA’s litigation machine, the judge did rule that an “offer to distribute” was enough to go on when filing complaints, leaving it open for the RIAA to allege that a defendant made an “offer to distribute” with the purpose of further distribution, public performance, or public display.