Although its discussion of the subject is only dictum, the March 31, 2008, decision of Judge Gertner in Arista v. Does 1-21 (which has somehow taken on the name "London-Sire v. Doe 1", presumably through consolidation), provides a much more orthodox and correct analysis of the requisites for infringement of the 17 USC 106(3) distribution right than does Judge Karas's analysis in Elektra v. Barker.
Judge Karas departed from the plain wording of the statute, and chose to disagree with a long line of cases and with all of the major copyright law treatises, when he decided -- based upon his foray into the "legislative history" of the 1976 Copyright Act -- that the statute didn't mean what it says. (See my criticism in Warner v. Cassin).
If you are litigating the "making available" issue, or the new theory which Judge Karas created and suggested to the RIAA of alleging "offering for purposes of distribution", please consider bringing the London-Sire decision to the Court's attention, especially the dictum at pages 19-27.
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