(this is an update from here)
I just heard about a proposed Jury instruction in this case.
from Ars Technica:
After both parties rested in Capitol v. Thomas, the attorneys for both sides began going through Judge Michael J. Davis' proposed jury instructions. Instruction no. 14 proved to be a sticking point, as Thomas' counsel Brian Toder told Ars tonight that the judge's proposed instruction indicated that the plaintiffs must show that an actual transfer took place in order for there to be a finding of infringement. "The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners' exclusive right to distribution," reads the proposed jury instruction. "An actual transfer must take place."
At first, I thought the instruction was a little unreasonable. It seemed like a hard thing to prove.
But then I realized that it would have required little extra work on the part of RIAA to get that proof. All they would have to do is have an employee log into Kazaa, and download songs from someone who has them available. I am moderately surprised that they don't already do that.