As early as yesterday morning, the music industry had a pocket full of kryptonite to use against the P2P community - the making available theory. It was a powerful theory that convinced a jury of Jammie Thomas' peers that the music industry was entitled to a whopping $220,000 reward in their copyright infringement case against her. Thomas was alleged to have a shared folder full of copyrighted work, and because she was making such files available, she was also distributing the work contrary to US copyright law.That powerful theory came crashing down yesterday, as Judge Michael Davis threw out the verdict and granted Jammie Thomas a new trial. The court found that it had erroneously instructed the jury to consider that making files available equaled distribution. The judge overseeing the case rejected the verdict based on that point alone, and therefore did not address whether her claim of excessive damages was valid. However, outside the scope of his order, Judge David had much to say about the excessive nature of the reward.Much of Judge Davis' order was spent negating the music industry's claim that making available equals distribution. In a concession to the RIAA's investigatory tactics, i.e., using MediaSentry to collect evidence, Judge Davis found that such evidence is admissible."The Court holds that distribution to MediaSentry can form the basis of an infringement claim. Eighth Circuit precedent clearly approves of the use of investigators by copyright owners."This will likely establish that when a new trail takes place, much of the same evidence used before will be used again. So all the screen shots and file names will all be brought back into evidence. But what will not remain the same is whether simply having those files in a shared folder (making available) means Thomas intended to distribute them. Judge Davis launched an all out assault on the making available theory, and it appears that the RIAA has lost a valuable weapon in their attempt to hold Thomas liable.The court made an important distinction between publication and distribution, something the plaintiffs in the case tried to make synonymous. The music industry attempted to argue that if one offers publication of a copyrighted work, it was the same as distribution. However, Judge Davis concluded that this was not the case, and found that the Congress intentionally used two distinct words to imply two distinct meanings.