Wired has a blog article discussing the definition of distribution – what constitutes giving files to other people – and frankly, it’s not so much a definition as an utterly faulty assumption that every available share will be scoured, ripped off, and offered up again.

“You don’t have to prove actual distribution. You need to prove there’s works in the share folder, and that is distribution,” said Joseph Geisman, MPAA’s chief intellectual property attorney, as he described the so-called “making available” concept.

Why shouldn’t you have to prove distribution? After all, I find it very ridiculous to assume that just because something is made remotely accessible, it is accessible publicly; to even pretend this is a legitimate argument requires looking at each situation on a case-by-case basis and examining how each is configured. For example, I (and yes, I will admit it) keep a remotely-accessible share of my music and software backups via Samba. However, here’s the rub: It’s only available to anyone on MY Hamachi network, and considering I highly doubt anyone will be joining that anytime soon, I think it’s safe to say that I’m sharing only with myself.  (It’s not the KaZaA share folder, but I doubt they’re going to be making that distinction anytime soon.)

According to the MPAA’s definition above, that’s still enough to be prosecuted – even though there isn’t a soul in the world with a copy of anything I have. It’s cases like this that demonstrate indirect proofs aren’t enough to determine the intent to share.  My collection is shared – with the protections necessary to keep it to myself – and by that vague monster of a definition, I would still be looking at the same fines as anybody else, even though nobody else has access to them.  (Obviously a security breach would be different – but I wonder if proving that would help much in this case.)

During the Thomas trial, U.S. District Judge Michael Davis instructed jurors they could find unauthorized distribution — copyright infringement — if Thomas was “making available” the copyrighted works over a peer-to-peer network. The jury decided her liability in five minutes.

Here’s another problem: We’ve got so many technically-challenged people involved with these cases (judges, juries, lawyers – everyone; yes, I realize we need people who will be impartial but that doesn’t mean they can’t have a brain or any knowledge of how what they’re talking about works) that all it takes is a scare marathon compliments of the **AA lawyers for them to decide guilt in less time than it takes to boil pasta.

“It is a distribution by putting works in a shared folder. You can deem that copies are being made. That goes for the indirect proof,” Geisman said. “Having it in a shared folder is indirect proof of actual copying of another user.”

The only thing this indirectly proves is that our legal system needs an infusion of intelligence and competence to match the times if we’re going to see these parades of pointless lawsuits end. Perhaps the money they pay to the lawyers should instead be invested in other things – like the artists, studios, and various audiovisual studios that provide the content for them to rip off. I mean, there’s obviously a problem if even the artists would rather download (or promote an alternative means to paying for music).

Perhaps Trent Reznor and his OiNK comments (previous link above) are the best way for the double-A’s to get a clue to revamp their business model:

“If OiNK cost anything, I would certainly have paid, but there isn’t the equivalent of that in the retail space right now.”

Fine, I’ll discuss something else next time.  But don’t say I didn’t warn you.