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Breaking Development in Thomas Making Available Case

By Senior Copyright Counsel, Google Inc.

The Thomas case in Minnesota has been watched worldwide, mostly for the amount of the jury verdict awarded. Thomas moved for a new trial, or alternatively remittur on the ground that the amount of the jury award was unconstitutionally excessive. Today, district judge Michael Davis issued an order indicating he may order a new trial based on an entirely different ground: concern that Jury Instruction N. 15, which permitted the jury to find infringement based on the RIAA's making available theory, may be contrary to the Eighth Circuit's binding precedent in National Car Rental System, Inc. v. Computer Associates, Inc., requiring the distribution of actual copies. (HT to Andy Bridges).

In my view, the making available theory is contrary to National Car Rental, to say nothing of the statute. Judge Davis also took note of the Howell decision. He has set briefing on the issue for May 29, 2008 at noon, with reply briefs set for June 5, 2008 at noon, and oral argument on July 1st.

This is a big deal.

Full post as published by The Patry Copyright Blog on May 15, 2008 (boomark / email).