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.

[scurrlin1]

She was just stupid enough not to know about being a freeloader instead of sharing all your files which can be turned off in Limewire preferences.

[fredtheviking]

I believe the use of software like Kazaa is dubious at best on part of the user. If you are using software that lets you download music you would have otherwise had to pay for iTunes, then you are breaking the law. No different than going into a candy shop and taking candy without paying for it. I don't know enough about this case in particular to have much of opinion, but I think more enforce is needed, to restore the value of copyrighted material.

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.

[glennc2]

Note to RIAA: Sell a better product for a lower price, quit suing your customers and make money the old-fashioned way....

[Tom_Sydnor]

Mr. Cooper:
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

[ackwell2009]

Downloading/distributing copyrighted music in this day and age is flat out stupid. It's one thing if alternatives aren't available. You have all kinds of subscription services and legal services to choose from. This isn't the 90's anymore. You are (a)Stealing (b)Exposing yourself to legal problems. (C)exposing your computer and files to viruses and trojans It's just not worth it in the end.

[Travis Ernst]

if I recall, didn't RIAA violate the law in this case history? Shouldn't THEY be fined for their criminal acts of downloading (turning the tables)? I don't support sharing, but RIAA makes it so grey to even share radio broadcasts one records from live free gigs. KEEP FIGHTING JAMMIE.

[ExWinUser]

scurrlin1 - you are a moron!
fredtheviking and ackwell2009, it's obvious you two like to bend over and be the corporate **ich!

[ackwell2009]

ExwinUser:It's not about being someone's whipping boy. It's the fact that some people believe unauthorized use of things that aren't physical in nature are ok, because noone's getting hurt. If you did this in the physical world, you would at the very least be investigated and probably prosecuted. Your purchase of a cd does not give you legal authority to distribute someone else's contents. I will say that the industry was hard headed in the mid to late 90's and didn't adapt when they could have been making money instead of letting people illegally distribute music. They have finally started to listen and you have an array of perfectly legal services to use. Committing a crime that has a small chance of being prosecuted is still a crime. If you get caught, you need to pay your debt and move on. Not liking a law doesn't mean that law doesn't apply to you. If you are sued or prosecuted, is your defense gonna be "I hate that law"? Again, people have free choice. Do what you want, but not start crying if something happens. Just m $.02.

[benjaminstraight]

She should have been wearing a limwire shirt in the photo.

[elliottdp]

Thomas "infringed by making the music available for others to download".

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.