One of the contested P2P cases we've been following is Atlantic Records v. Jeffery Howell, which is being heard in a federal court in Phoenix. Howell and his wife have been representing themselves so far, but are going to get a bit of high-profile help tomorrow. EFF staff attorney Fred von Lohmann is going to appear at a hearing tomorrow to argue that the mere presence of music in a KaZaA share is not enough to constitute copyright infringement.

The Howells were originally sued in 2006. In their original response to the RIAA's complaint, they argued that KaZaA was "not set up to share" and that the files flagged by MediaSentry were "for private use" and "for transfer to portable devices, that is legal for 'fair use.'"

In August of last year, Judge Neil V. Wake granted the RIAA's motion for summary judgment, awarding the labels $40,500 in statutory damages and $350 in court costs. The Howells appealed the ruling, saying that they were "unaware" that their "personal files" were being shared over KaZaA, and in late September, Judge Wake vacated the summary judgment.

Von Lohmann's appearance in court tomorrow will be in support of a brief filed by the EFF in January. In the filing, the EFF argued that the mere fact that songs were made available for download in a shared folder does not constitute copyright infringement. The only downloading that anyone can demonstrate was done by MediaSentry with the RIAA's explicit authorization and permission, which the public interest group argues does not constitute copyright infringement.

The "making available" argument is one that keeps resurfacing in contested cases, and was one of the factors in the Jammie Thomas trial. The judge presiding over that case told the jury that the labels did not have to prove that anyone downloaded any files from Thomas—the mere fact that they were in a KaZaA share was sufficient to constitute copyright infringement.

Von Lohmann will argue against that reading of US copyright law in his appearance tomorrow. Since the Copyright Act specifically authorizes copyright owners to control copies distributed "to the public," there needs to be evidence that said distribution actually took place. "Where the only evidence of infringing distribution consists of distributions to authorized agents of the copyright owner, that evidence cannot, by itself, establish that other, unauthorized distributions have taken place," reads the EFF's brief.

The EFF has math on its side: with over 2.2 million KaZaA users online when MediaSentry downloaded the files, the group believes it's highly unlikely that anyone would have grabbed the 11 songs in question, as they were popular songs and available from thousands of other users on KaZaA.

The fact that Judge Wake is hearing arguments on this issue is significant. If he rules that the record labels have to show that someone aside from MediaSentry downloaded the files in order to prove infringement, it could prove to be a serious setback for the RIAA's legal campaign. At the very least, it would move Atlantic v. Howell further in the direction of a trial.