The Judge who presided over the first successful prosecution of an American P2P file sharer has hinted that he has changed his mind - and may nullify the trial.

Jammie Thomas sold her knickers online (see pic) after being convicted of copyright infringement last year. A jury of her peers in Duluth, Minnesota wasn't impressed by what they regarded as a time-wasting trial, when she should have copped to a small fine:

"Her defense sucked... I don't know what the fuck she was thinking, to tell you the truth," said jury member Michael Hegg at the time.

Jammie Thomas fundraising thong

But now Judge Davis thinks that the basis of the record companies' pursuit of file-sharers sucks, too. It hinges on the prosecution's use of the "making available" argument. Last October, the prosecution successfully argued that leaving songs in a shared folder on a network means making them available, leaving the sharer liable for infringement damages. That's what Judge Davis told the Duluth jury, too. The problem is, the Copyright Act doesn't use the words "making available".

What the Act does do, however, is define five exclusive rights in the copyright 'bundle': Reproduction, adaptation, publication, performance and display. And for sound recordings, it defines "publication" as "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display".

Which seems clear enough.

But the courts have expressed differing views on the matter. Within the space of a fortnight earlier this year, we saw two courts accept the argument that shared folders aren't publication while another rejected it. (See Is sharing a folder copyright infringement?.)