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Law professors argue against making available as infringement in Jammie Thomas appeal

20 June 2008 3:08 by Rich "vurbal" Fiscus | 4 comments

Last month the federal judge in the Jammie Thomas file sharing case did something you don't see very often. He admitted that he may have been wrong when he gave instructions to the jury before they began deliberating, which may lead to a new trial. In case you don't remember, the jury ruled in favor of the RIAA, who claimed that since Thomas' computer had songs shared on a P2P network she was violating the copyright holders exclusive right to distribute.

Judge Michael Davis instructed the jury that simply sharing the files would qualify as infringement, but has since discovered that this is not the generally accepted interpretation of copyright law. Now he's trying to determine whether he erred in the first trial, which ended in a judgement for $222,000 against Thomas. To his credit, rather than brushing aside the defense's argument about his interpretation of the law he's asked for outside opinions on the matter and gotten some from a group of 10 law professors who specialize in copyright law.

Their Amici Curiae (friend of the court) brief argues that "because a defendant 'distributes' in violation of � 106(3) only when she actually transfers to the public the possession or ownership of copies or phonorecords of a work, no distribution is effected merely by making a work available for distribution on a peer-to-peer network."

Even if the judge agrees with this conclusion Thomas isn't out of the woods yet. There's still the issue of whether an investigator downloading the file would count as distribution for purposes of the Copyright Act. The question is one of whether such a person counts as "the public" since he's technically acting with the express permission of the label.

In addition there's some debate about whether copying music to a computer, which is generally interpretted as fair use under the law, becomes copyright violation if it's intended for sharing, and therefore no longer simply for personal use.

People who are predicting she's out of the woods already are missing the bigger picture. Someone with a username that Jammie Thomas is known to have used for other services shared files via P2P that were subsequently found to be shared on her computer.

It's unlikely that her sharing the files resulted in anyone losing $222,000 in sales. While there seems to be a good chance she could get a new trial, there's no reason to assume it will end better for her.

Permalink to this article | Topics: Lawsuits & Legislation MP3 & Digital Audio

RIAA lawyers still fighting to stop Jammie Thomas' new trial (12 November 2008)

Virgin denies it will disconnect 'pirates' from the Internet (3 July 2008)

Judge once again affirms award against RIAA in Tanya Andersen case (26 June 2008)

Gene Simmons blames NIN, Radiohead and fans, for 'death' of music industry (25 June 2008)

EFF shoots down "making available" argument in Jammie Thomas case (23 June 2008)

MPAA to judge: We don't need no stinking proof (21 June 2008)

RIAA prepares to drop long running P2P suit for a lack of evidence (20 June 2008)

Jammie Thomas begins music sharing case appeal (17 May 2008)

EFF targets RIAA's 'making available' claims (14 January 2008)

Thomas to get new lawyer team for RIAA case appeal (1 January 2008)

RIAA challenges Jammie Thomas' excessive damages complaint (13 November 2007)

RIAA trying to dodge legal fees after dropping case (18 October 2007)

Thomas to appeal P2P trial verdict (8 October 2007)

Woman to pay full record label damages herself (5 October 2007)

IFPI statement on U.S. file sharing verdict (5 October 2007)

Update: Woman owes $220,000 to recording industry over pirated music (4 October 2007)

First U.S. file sharing trial kicks off (3 October 2007)

RIAA gets a chance to prove their case before a jury (28 September 2007)

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Discuss this article!
7thsinger (AfterDawn Addict) 20 June 2008 8:32
*Quote:* When she lost, she was then told to pay $9,250 for each of the 24 songs, a hugely disproportionate number. *Quote:* It's unlikely that her sharing the files resulted in anyone losing $222,000 in sales. While there seems to be a good chance she could get a new trial, there's no reason to assume it will end better for her. I'm still amazed at what they think they can nail her for in damages. It's grossly ridiculous. I hope she does get another trial, i don't think she'll walk away from it free and clear, but maybe it will end up better than owing $222,000. [ + quote]
nobrainer (Inactive) 20 June 2008 11:53
to quote another thread on the topic of costs per download! http://www.afterdawn.com/news/archive/14548.cfm *Quote:* *Quote:* he has consistently taken the RIAA to task for their calculation of damages, which he sees as not just excessive but also beyond the scope of the law. Rather than $750 per song for a total of nearly $7000 he argues that the maximum allowed by law would be the actual cost of the same tracks if purchased ($8.91 for 9 songs) multiplied by a statutory maximum of 9 for a total of $56.70. Ironically that's the same argument that Universal Music Group, the plaintiffs in this case, used to get damages reduced after losing a copyright infringement case related to sampling where they were the among the defendants. one rule for us and one for them! The BPI Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The RIAA Soundexchange Are: SONY, UNIVERSAL, WARNER GROUP, EMI. The IFPI Are: The same anti consumer lot as listed above! The MPAA Are: SONY, UNIVERSAL, WARNER GROUP, DISNEY, PARAMOUNT, FOX. [ + quote] This message has been edited since posting. Last time this message was edited on 20 June 2008 11:55
WierdName (Senior Member) 20 June 2008 17:13
*Quote:* Someone with a username that Jammie Thomas is known to have used for other services shared files via P2P that were subsequently found to be shared on her computer. Are you kidding me? How many times have you gone to a site and tried to sign up with a name you use frequently only to find out that it's taken already? Just because they used a specific username elsewhere doesn't mean it was them on the P2P network. [ + quote]
blueroad (Newbie) 22 June 2008 7:32
*Quote:* *Quote:* Someone with a username that Jammie Thomas is known to have used for other services shared files via P2P that were subsequently found to be shared on her computer. Are you kidding me? How many times have you gone to a site and tried to sign up with a name you use frequently only to find out that it's taken already? Just because they used a specific username elsewhere doesn't mean it was them on the P2P network. lol totally agree [ + quote]