Is "Making Available" itself a copyright infringement?

Canadians will remember that when reporting BMG Canada v Doe (The CRIA filesharing case"), many journalists parroted the CRIA misinterpretation that the case was lost due to a lack of a "making available" exclusive-right in Canada. Anyone who read the case knew the primary "issues" were that Canada has stronger privacy legislation than the USA (why there was a discovery case at all), and that CRIA members provided no evidence of infringing activity. All they needed to have done was download and listen to some songs, and the names of the John and Jane Doe's would have been legally disclosed to them by the ISPs.

A case is currently before the US courts where the RIAA is testing their questionable legal theory concerning "making available". An article in January by lawyer Ray Beckerman, author of The Recording Industry vs. The People asked the question, Is 'Making Available' Copyright Infringement?. This legal theory has now been argued in Elektra v. Baker, with a transcript now available.

While the DMCA, the most hated law on the Internet, represents one of the most draconian interpretations of the controvercial 1996 WIPO treaties, it will be interesting to finally find out whether this legal theory will survive court scrutiny within the USA. If the RIAA looses this aspect of the case, as I suspect they will, will this cause the RIAA to lobby to get the USA added to the "Special 301 Watch List"? It was largely misinterpretations of the BMG case and the questionable legal theory suggesting that "making available" should itself be considered an infringement that causes people to incorrectly believe that Canada would be off of the 301 report if we ratified the 1996 WIPO treaties.

Notice the reference made to the EFF submission on Elektra v. Barker which focuses on whether filesharing is a "Distribution" which historically related to distribution of tangible(physical) copies, or a communication by telecommunications. I am unaware of a case that has decided this important difference, and discussed the issue in Canadian Peer-to-peer (P2P) legal theories, proposals and questions. It matters if P2P is considered a "communication by telecommunications" or a distribution of a "copy" given how this interacts with existing levy systems for communication of music (IE: payment is required, not permission). This may help further push towards a levy system for non-commercial online sharing of multimedia, the IMHO best of the various options to solve the current problem.