The trial of Minnesota resident Jammie Thomas, who has been accused by record companies of sharing 1,702 songs via Kazaa, is going to the jury today, and Ars Technica is reporting that presiding judge Michael J. Davis instructed the jury that, for Thomas to be found guilty, the plaintiffs in the case had to prove that an actual file-transfer took place, and that simply making music available was not enough to find Thomas guilty. This is a shift from the RIAA’s preferred stance on file-sharing, which was held up by a judge in Arizona a few months back.

If the labels do lose this case–and that instruction is making a loss for them seem likely–they might want to hire some “experts” who are actually well-versed in how long it takes to rip a song from a CD to a hard drive:

Earlier in the day, Thomas set up her computer in court to show the jury how quickly CDs could be copied onto it. The demonstration was aimed at countering testimony by an expert who testified that the songs on one of Thomas’ computer drives were created just 15 seconds apart, suggesting piracy. But each song Thomas copied in court over Gabriel’s objection took less than 10 seconds to land on the computer.

Jacobson said the comparison might not be valid because the version of Windows Media Player that Thomas used to copy, or “rip,” the CDs in court was different from what was available in February 2005, when the files in contention landed on her hard drive.

Of course, in the eyes of Sony BMG’s legal team, doing that is stealing, too, news which surely thrilled the makers of all the portable media players whose businesses are sort of dependent on consumers doing exactly that. We’ll have updates on the case once the jury comes back with a verdict.

Download Case Should Go To Jury Today [AP]