Wired reports on this astonishing claim, and provides a copy of the MPAA's legal brief to back it up.

I dislike the copyright regime probably even more than you do. While still in place, however, it would seem natural for me to prosecute "making available" in the sense of putting the files in a share folder - making them show up in a search and downloadable from you - as copyright infringement regardless of whether or not anyone actually makes use of it.

Rather than trying to use a loophole to escape prosecution for an act I don't regard as immoral, I'd try not to get caught in the first place.

"While still in place, however, it would seem natural for me to prosecute "making available" in the sense of putting the files in a share folder - making them show up in a search and downloadable from you - as copyright infringement regardless of whether or not anyone actually makes use of it."

It might be "natural" for you if you were a shameless industry bully interested only in victory at any cost an without scruples but it would be contrary to statue and contrary to the public interest.

By the same "making available" reasoning you have asserted you could also hold that every library and video store should be libel for "making available"--that is what they do, they make the copyrighted works "available." It is certainly foreseeable that somebody could copy all or part of any of the copyrighted works they make available. So, your reasoning suggests that since all the works in a library or video store are made available then those institutions should be libel for the statutory damage limit for **every work** in their collection even if there is no evidence that any actual copying ever took place. A single branch of a municipal library might have 100,000 works in its holdings. 100,000 x the $750 statutory minimum = $75,000,000. Or 100,000 x $150,000 = $15,000,000,000. So, under "making available" a single branch library could be liable for damages between $75 million and $15 Billion dollars--all without having to prove a single act of copying. That is why prosecution based on mere "making available" is not only contrary to statute but it is against the public interest.

Demanding that actual infringement occur before presumptive statutory damages are incurred is not a "loophole", it is the law as written in statute, and it is the law for sound reasons, as the absurd results that would result if "making available" was law of the land clearly show.

I agree with Shane. Copyright infringement is making unauthorised copies, not facilitating unauthorised copies. Let's not join those attempting the folly of making the anachronism of copyright appropriate to the digital domain

However, elevating 'making available' into an infringement (while not so nice for those fish shot in a barrel) will hasten copyright's demise.

So in that sense MPAA, are on a lose-lose trajectory. If they do nothing, copyright withers. If they try to reinforce it, copyright is more quickly deprecated.

Right. My hidden premise was that the sole purpose of putting the files in the share folder was to facilitate copyright infringement. I now realize that this might not always be true.

I agree that if in any situation there are other conceivable purposes than facilitating copyright infringement, then it is not natural to prosecute "making available".

As for what's natural, it's ethical as well as natural to copy published works and facilitate the copying of published works. One can substitute 'share and build upon' for 'copy'.

If you've been given an unethical, unnatural monopoly by the state that conflicts with this natural cultural exchange, then plainly you've got your work cut out for you in terms of prosecuting infringement of this privilege.

Let us better observe that it is only to be expected that unnatural corporations will prosecute their unnatural privileges against such natural persons as may be found in a culturally adventurous society. It is predictable that they would lobby for legislation against all cultural liberties - especially the facilitation of copying, in addition to the copying itself.

What I find surprising (though I shouldn't) is how easily people seem to hold two contradictory ideas at the same time:

A) Suspension of cultural liberty is a good thing and a necessary prerequisite for cultural adventure.

B) Cultural liberty is a good thing and a necessary prerequisite for cultural adventure.

People manage this incredible Doublethink though context:

a) Publishers need monopolies to make publishing original work economic enough that they can just about afford to reward artists.

b) Artists and audience should be free to share and build upon published work in order to be inspired to originate new works.

Publishers, logically if dispassionately, say "No. You have no liberty to share or build upon our published works. Tell your agent to get in touch with us and we'll talk about a license".

And the public, mere human beings, are left scratching their heads wondering how to reconcile 'Stealing copies is bad' with 'Why do I steal copies?'.

To find the contradiction you have to go back three hundred years:

1) Suspension of cultural liberty was recognised as unethical by some, but because it was so politically and commercially expeditious the unnatural privilege of copyright was enacted (and patents retained).

2) Cultural liberty is a human right and may not be suspended for political or commercial exploitation.

Clearly, copyright and patent should be abolished. What's not at all clear is what will actually happen.