The Electronic Frontier Foundation weighed in this week on the Jammie Thomas file-swapping case, where the judge has asked for public comment on whether just making a file available for download on a P2P network should count as copyright infringement. In its filing, the EFF goes for the jugular and shows that the RIAA’s entire approach is wrong.

The Electronic Frontier Foundation weighed in this week on the Jammie Thomas file-swapping case, where the judge has asked for public comment on whether just making a file available for download on a P2P network should count as copyright infringement. In its filing (PDF), the EFF goes for the jugular, seeking to show that the RIAA’s entire approach to file-swapping cases is flawed.

Not only does the Copyright Act not grant a “making available” right, the EFF said, but trade groups also shouldn’t be allowed to claim that an actual distribution took place based solely on downloads from their own investigators.

Together, this two-part theory would effectively eviscerate the RIAA’s current legal campaign by making it nearly impossible for copyright holders to show that infringing distributions to the public have taken place over P2P networks.

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