Rick Sanders has been quoted by the U.S. District Court of the Eastern District of Virginia, in a case holding that Cox Communications, Inc. did not have a sufficient repeat infringer policy in order to allow it to take advantage of the safe harbors of the Digital Millennium Copyright Act. (Cox would terminate repeat infringers, but then reinstate them immediately). In BMG v. Cox Communications, Inc., the Court however, agreed with Cox that Cox’s customers did not infringe copyright merely by making infringing materials available for download by others. In a footnote, the Court cited Rick’s article Will Professor Nimmer’s Change of Heart on File Sharing Matter?, 15 Vanderbilt J. Ent. & L. 857, 865 (2013) for the point that there is no right of the copyright owner to restrict a customer making files available for distribution; only the actual distribution can be restricted by the copyright owner.
More about Rick’s theory on the “making available” right can be found here.