FWIW, this theory was attempted in court with a bittorrent case in Hong Kong. [1]
Defendant's lawyer argued that seeding a copyrighted movie was not (active) distribution but merely "making it available" (which was not associated with a criminal offense in HK law as opposed to "distributing infringing copies").
Defendant's lawyer argued that seeding a copyrighted movie was not (active) distribution but merely "making it available" (which was not associated with a criminal offense in HK law as opposed to "distributing infringing copies").
Didn't work out.
---
[1] HKSAR v Chan Nai Ming [2005] 4 HKLRD 142