Posted by Ernest Miller at:

http://www.corante.com/importance/archives/2005/05/17/more_on_making_available_and_patels_napster_ruling.php

(Go there for links!)

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Goldman points out that a close reading of the decision indicates that Judge Patel hasn't yet determined whether 17 USC 106(3) (right of distribution) includes "making available." She has only determined that the Artists' Rights and Theft Prevention Act of 2005 didn't change the proper interpretation:

I read Judge Patel's 5/11 order as simply saying she is not going to permit the Record Companies to file the supplemental brief, because she does not believe the ART Act has changed anything as to how Section 106(3) should be interpreted. In particular, I do not see any reference to a disposition of the underlying motion for summary judgment. My conclusion, then, is that the underlying motion for summary judgment is still pending, and she has not ruled whether or not maintaining the index of downloadable files does/does not infringe the copyright owner's distribution right.
He's right.

It'll be interesting to see what Judge Patel actually rules, she may not have to reach the issue.

What is happening here is that the investor defendants are seeking summary judgement on the case by claiming that there is not sufficient proof of direct infringement by Napster's users, which means the investor defendants would not have tertiary liability.

What that means, is that the lawyers for the RIAA were bloody idiots because they didn't nail down evidence of direct infringement before launching the Napster lawsuit. It would have been almost ridiculously easy, but they didn't even bother to try, apparently.