RIAA defendant Jammie Thomas may get new trial

Jammie Thomas, the Minnesota woman who was slapped with a $222,000 penalty for allegedly sharing music on the Kazaa network, asked for a new trial way back in October 2007.

The surprising thing is that she may get one.

U.S. District Judge Michael Davis wrote Thursday that he was "contemplating granting a new trial." That's because, Davis said, he may have wrongly instructed the jury that merely making a copyrighted song available in a shared folder amounts to infringement. Oral arguments on this question are set for July 1.

Asking for a new trial is pretty standard, but the request isn't granted that frequently. The reason Davis is willing to consider it is that one case that the Recording Industry Association of America relied on is being reconsidered and a second, which neither side cited, suggests that an actual transfer has to take place. (The 1993 8th Circuit case, which is binding precedent, says that infringement "requires an actual dissemination.")

A good portion of the RIAA's case, at least in this aspect of the lawsuit, centers on the "making available" argument. Here's what I wrote last October:

What's important to remember here is that the RIAA's victory 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.

Since then, a federal judge in New York was skeptical of the "making available" claim--though acknowledging that an "offer to distribute" arguably amount to a distribution. In an even more important case, Atlantic v. Howell, a second federal judge took a dim view of the RIAA's "making available" theory, saying:

The court agrees with the great weight of authority that Sec. 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute "copies" of their works to the public "by sale or other transfer of ownership, or by rental, lease, or lending." Unless a copy of the work changes hands in one of the designated ways, a "distribution" under Sec. 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.

Meanwhile, Thomas' appeal to the 8th Circuit is still under way.

So what will happen if Thomas receives a new trial? From the RIAA's perspective, it may not matter that much. When I was talking to the RIAA last month about one of its other cases, they said: "But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire 'making available' issue irrelevant."

[NoVista]

Hmmm, if I rip off a digital camera and sell it to someone, the buyer could be charged with 'receiving stolen property'. Not an exact parallel, but close enough for gov't work!

And then, if I rip a CD to MP3 or OGG, it isn't an exact copy anyway.

Back in the dial-up days on IRC, we used to swap MP3s, generally a portion of a song. Hey, I like, and buy. Don't like, toss the MP3, no loss to anyone. Maybe RIAA should develop a 21st century business model. And maybe RIAA should distribute some of the damages received in other settled cases to the artists who've been 'disadvantaged'.

[Penguinisto]

You're wrong on one count... stealing a digital camera is depriving someone of a physical item, whereas copying a song still leaves the original intact with its owner. Even the "gov't" knows the difference.

[Stumped_in_Canada]

If I leave my car unlocked, windows down and the keys in it I have committed no crime. Now I may not be the brightest bulb in the pack but I still have committed no crime. The crime is committed when the car is taken by someone not authorized by me to have my car. The police do it all the time here... they are called bait cars.

[QUOTE]
"When I was talking to the RIAA last month about one of its other cases, they said: "But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire 'making available' issue irrelevant.""[/QUOTE]

Seems to me the real criminal here is the RIAA.

[Burnsie001]

Seems a bit weird to complain that they where allowed to download a song where they own the copywrite . If the RIAA is allowed to make copies of the song, how is it that the person making it available to them is a criminal. If the RIAA don't have rights to the song, then how is it considered they are not committing an illegal act by downloading it. You can't break to the law to enforce it.

[chonnom]

The sad thing is that the RIAA is granting itself police-like powers and none of the courts is saying anything about it. Just because she had the item in a shared folder and it was downloaded by some RIAA sleuth does not mean that it was downloaded by any other individual. Burden of proof is on the RIAA to prove that someone else had access to the material. I agree with "Stumped" just because the RIAA jacked some material from this lady's computer doesn't mean that she's guilty, it just means her computer was unprotected. I've been wondering how they, the RIAA, are getting around the "willfull" requirement in copyright infringement....oh well; our great American justice system. Guilty until proven innocent, unless you're rich.

[Lerianis]

Well, chonnom, they are trying to convince the courts that they very fact that a person had a p2p program on their computer is evidence of 'willfulness'.
I don't buy it, because I use p2p programs to download japanese shows and foreign shows legally.... but they haven't had a relatively smart judge yet who challenges them.

[wahoospa]

And how do we know the RIAA really downloaded the song from her computer? Can they prove that the song was downloaded from her computer? They must prove that the song was downloaded from her computer. Or does the court take their word. They may be lying just to get a verdict in their favor. Just because she had the song on her computer they could "say" that they downloaded it from her machine but in fact my be lying.

[sanenazok]

It's not surprising that the judge would consider granting a new trial, but it's more or less pointless given that the RIAA has proof of having actually downloaded files from her computer. Sure they would have to prove that the files came from her computer, but that's what the new trial would be for. The RIAA did not want to go for this argument since they were hoping to get the "making available" is infringement argument to prevail. In any event the judge should wait and see what the court of appeals does with this, no?

[The_Decider]

They would also have to prove she knowing put them up, which will not be easy. 99.9% of computer users have no business owning a computer.

[ittesi259]

If the RIAA truly downloaded songs from this defendant, why did their original case not go through that argument instead of this "making available" BS. It can be only 1 of 2 reasons....they either didn't download anything so they couldn't use it in court, or they totally tried to go the political activism via the judicial process to rewrite laws.

[username54321]

Seems to me the "right to distribute" presumes a "push" model wherein the person who legitimately purchase the song is not permitted to actively "push/distribute" the song to
anyone else. But to what extent must that person safeguard the song from other persons
who want to "pull" a copy? If I leave a music CD lying about in the open and someone
comes along, picks it up, makes a copy and returns it... all without me knowing... am
I liable for prosecution by the RIAA because I have somehow "distributed" it without
their authorization? If I discover that someone "borrowed" my CD wthout my permission
in order to copy it, can I then prosecute them for "theft". Perhaps all the P-P sites should
post a statement prohibiting access by the RIAA (including their agents or assigns) so
that, whenever they state they have downloaded a copy of a song, they are admitting
their guilt to violating this prohibition and thus opening themselves to prosecution.

[Lerianis]

You make a good point. Since they are violating the law themselves, and the music companies and movie companies are not going after the MPAA and RIAA, it could be argued that the law is being enforced unevenly, thereby making said law null and void.

[MrTreize]

They say that in each case they actually downloaded a copy of the file from the defendants computer but can they actually prove that what they downloaded came from the defendants computer? I am not a legal expert but is it not plausible that they downloaded the files once the computers were examined in custody for the trial? I guess that is one of those crazy conspiracy theories of mine.

[mmp138]

OK Let's the RIAA said "But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire 'making available' issue irrelevant." Hello!! Can U say entrapment. If not the that's still sounds like evidence tampering, maybe. Or can we just say creating evidence to suit thier purpose.

[Rocker452]

Burnsie001 brings up a good point. If the RIAA has the copyright then nothing illegal took place from them downloading it. If they don't have the copyright then they broke the law by downloading it, so they should sue themselves for infringement Like that will happen!.

[columbia1]

The whole discussion has little importance because in nearly every case the RIAA can subpoena the internet providers to provide information relating to IP addresses that shows the exact songs placed in the shared file, as well as those who accessed and downloaded the files. It happens in nearly every case. There is no conspiracy here, people simply underestimate the ease with which others can track their online activity.

[Revrant]

I'm on her side regardless, this is a mother, she can't afford that insane a fine, that's more than most CEOs make salary-wise, slapping people with 1000 dollars was the correct thing to do, now it's just greed, and isn't it baiting if they go in and download the songs themselves?

[szieno]

So using your logic does that mean that an undercover cop who buys drugs from a drug dealer get arrested but not the dealer? Wow, that's a stretch. Here's an idea. Maybe someone who either engages or attempts to engage in an activity that they know or should have reasonable cause to know is illegal should get arrested!