"Making Available" As Distribution: File-Sharing and the Copyright Act‪.‬

I. INTRODUCTION On October 4, 2007, a jury in Minnesota fined Jammie Thomas $222,000 for sharing twenty-four songs on the KaZaA music-sharing program. (1) The verdict came four years into the extensive program of actions against individual file-sharers conducted by the Recording Industry Association of America ("RIAA")--the industry group representing record companies. (2) This was the first case in which a jury had reached a verdict, (3) even though the RIAA has "filed, settled, or threatened, legal actions against well over 20,000 individuals." (4) In summarizing the case, now Chief Judge Michael J. Davis gave the following jury instruction: "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown." (5) This instruction succinctly identifies the issue considered in this Note, an issue of much debate in the recording industry and the judicial and academic legal communities. Specifically, this Note analyzes whether the "making available" of an electronic file is sufficient to qualify as "distribution" under the Copyright Act, and thus infringes a copyright owner's exclusive rights.