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Jammie Thomas Verdict Thrown Out, Judge Orders New Trial in P2P Case
September 25, 2008
Thomas Mennecke
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As early as yesterday morning, the music industry had a pocket full of kryptonite to use against the P2P community - the making available theory. It was a powerful theory that convinced a jury of Jammie Thomas' peers that the music industry was entitled to a whopping $220,000 reward in their copyright infringement case against her. Thomas was alleged to have a shared folder full of copyrighted work, and because she was making such files available, she was also distributing the work contrary to US copyright law.

That powerful theory came crashing down yesterday, as Judge Michael Davis threw out the verdict and granted Jammie Thomas a new trial. The court found that it had erroneously instructed the jury to consider that making files available equaled distribution. The judge overseeing the case rejected the verdict based on that point alone, and therefore did not address whether her claim of excessive damages was valid. However, outside the scope of his order, Judge David had much to say about the excessive nature of the reward.

Much of Judge Davis' order was spent negating the music industry's claim that making available equals distribution. In a concession to the RIAA's investigatory tactics, i.e., using MediaSentry to collect evidence, Judge Davis found that such evidence is admissible.

"The Court holds that distribution to MediaSentry can form the basis of an infringement claim. Eighth Circuit precedent clearly approves of the use of investigators by copyright owners."

This will likely establish that when a new trail takes place, much of the same evidence used before will be used again. So all the screen shots and file names will all be brought back into evidence. But what will not remain the same is whether simply having those files in a shared folder (making available) means Thomas intended to distribute them. Judge Davis launched an all out assault on the making available theory, and it appears that the RIAA has lost a valuable weapon in their attempt to hold Thomas liable.

The court made an important distinction between publication and distribution, something the plaintiffs in the case tried to make synonymous. The music industry attempted to argue that if one offers publication of a copyrighted work, it was the same as distribution. However, Judge Davis concluded that this was not the case, and found that the Congress intentionally used two distinct words to imply two distinct meanings.

"While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution"

In other words, if someone has a CD collection and publicizes on a street corner that he or she has over 1,000, it doesn't necessarily mean the individual intends to distribute the work. How can anyone be certain of the intentions of that individual?

The real juicy part of Judge Davis' order comes at the end. The caveat to the order attacks the music industry's campaign against the single mother of two, and assails their claim as "wholly disproportionate to the damages suffered by Plaintiffs."

"The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market."

Thomas doesn't get a free ride by Judge Davis, who described her actions as "illegal", but his order has considerably more negativity aimed towards the music industry's legal efforts. Judge Davis realized the mistake of allowing the jury to consider the "making available" claim, and barring a reversal of the order, it will not be included in the next trial. If that's the case, it will simply be Jamie Thomas vs. The RIAA, and no benefit of the "making available" theory.

Considering the making available theory is the crux of the music industry's argument, it's likely they won't take this ruling without a fight. The entire case may detach itself from the basic principal of copyright infringement and instead focus on whether making available is a legally viable theory. In the meantime, Jamie Thomas is relieved of the massive reward, but could be the focal point of a much longer legal fight.

This story is filed in these Slyck News categories
Legal/Courtroom :: Individual Lawsuits

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