Jammie Thomas likely to get another day in court
A move's afoot to get a new trial for Jammie Thomas. She's the Minnesota woman a court ordered to pay the recording industry $222,000 for copyright violations related to sharing songs.
Jammie Thomas
You may recall that the jury never found that Thomas had downloaded any music but had infringed by making the music available for others to download. So Friday the Electronic Frontier Foundation, along with a coalition of consumer and industry groups, said the court's judgment should be overturned because of erroneous instructions to the jury.
The headline here should be: EFF to court: Jammie Thomas judge was a dolt. At the time, the instructions the jury heard posited the following:
The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.But that was a mistake, according to the EFF (and a lot of copyright specialists who have since weighed in on the verdict.) Again, from the EFF submission:
The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work--a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.
This is potentially a big deal. If the so-called "making available" theory holds up, you're likely going to see some odd copyright decisions come down the pike.
Already, the EFF notes, Google's been the target of some copyright owners who have pressed their case using the theory. Ditto for the DMCA notices sent to colleges and universities "based solely on evidence that students have made songs available for possible download by others."
Even the judge in the case now acknowledges that he may have goofed up. In October, when the Thomas verdict came in, my colleague Declan McCullagh observed that the Recording Industry Association of America's victory was vulnerable.
(It) rests in large part on...the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point...It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.
That's an important distinction. Based on what we know now, the courts agree. Bottom line: Thomas should get another day in court. And she likely will.
Charles Cooper has covered technology and business for more than 25 years. Before joining CNET News, he worked at the Associated Press, Computer & Software News, Computer Shopper, PC Week, and ZDNet. E-mail Charlie. 
My second point is people who don't respect copyrighted material need to be published to protect and reward people's creativity. If content is cheap (free), then all you will have is crappy content, because no one with the ablity to create good content will do it for free.
Really, the companies in question here have to make the cost/benefit analysis in their favor. With the DRM problems, compressed files they are selling, etc...... it just isn't in their favor and WON'T be no matter how many people they take to civil court.
Get rid of the DRM, start charging less for their songs on iTunes, MSN Music, etc..... then maybe we will see a change.
I enjoy your work. Two points about this story.
First, I think you overestimate EFF's chances of getting (or sustaining) a victory on the making-available issue. The Copyright Act grants copyright owners exclusive rights "to do and to authorize" acts including making copies of a protected work and distributing copies to the public. Someone "sharing" a file on KaZaA surely "authorizes" the reproduction and distribution of that file. As a result, EFF will have to find a way to convince the court that "to authorize" does not really mean what it says.
That's always a weak argument, but here, there is another problem. In a 2001 case called Tasini, the Supreme Court held that certain publishers infringed copyrights in certain magazine articles because, when the publishers signed contracts that let third parties upload copies of those articles into widely accessible online databases, the publishers thus "'authorize[d]' reproduction and distribution of the Articles." 533 U.S. at 498. Litigants who must swim upstream against the plain meaning of statutory text and a Supreme Court holding are longshots--at best.
Second, EFF forgot that the outcome in Thomas cannot save Google from lawsuits brought under a making-available theory of copyright infringement. Why? Because governments are expressly required to provide a making-available right to copyright owners by two multilateral treaties (the WIPO Copyright Treaty, (Art. 8), and the WIPO Performances and Phonograms Treaty, (Art. 14). These treaties have been ratified and adopted by 65 nations including Australia, Austria, Belarus, Botswana, Canada, Chile, China, Columbia, Denmark, the European Community, France, Germany, Greece, Indonesia, Ireland, Isreal, Italy, Jamaica, Mexico, Nigeria, Peru, Poland, Portugal, the Republic of Korea, Romania, Singapore, South Africa, Spain, Sweden, Switzerland, Ukraine, the UK, the US, and Venezuela.
Cases like Thomas are important because they may tell us whether the US is violating these treaties, but most other nations are complying with them. As a result--and regardless of what happens in Thomas--online service providers will need to structure their operations to account for the making-available rights of copyright owners.
Thanks again for your work. --Tom
Right now, with the cost being the SAME as if you bought the real thing in a store, when they don't have to pay for: blank CD's, transportation, etc...... there is still a VERY good reason to download things like this off p2p.
I personally don't do it.... but I can understand why other people do it.
fredtheviking and ackwell2009, it's obvious you two like to bend over and be the corporate **ich!
On top of that with copyright cases, you only need to convice 9 of the 12 jurors that the person is probably guilty. While with any physical case, you have to convince all 12 jurors of guilt beyond a reason of a doubt. So the prosecutor will need a lot more evidence than the RIAA ever presented in the Thomas case. And a crime isn't a crime until a person is convicted of it. That's why the people in court are call "the accused," not "the criminal."
- by elliottdp June 23, 2008 6:39 AM PDT
- Thomas "infringed by making the music available for others to download".
- Like this Reply to this comment
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(19 Comments)I guess that means that any retailer that has a sidewalk sale with racks outside of the store can be found guilty of enabling/contributing to shoplifting??
Strange world. Just remember folks, It's not a court of justice, but a court of law.