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RIAA Thomas Appeal Denied; Retrial Likely to Set New Copyright Infringement Course

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

A federal judge is denying the Recording Industry Association of America's request to appeal his decision granting a retrial in the RIAA's only file sharing case to go to trial.

U.S. District Judge Michael Davis of Minnesota declareda mistrial in the Jammie Thomas case months ago and nullified the jury's $222,000 award against the Minnesota woman for sharing 24 songs on the Kazaa network. The judge declared a mistrial a year following the 2007 trial after concluding that making available copyrighted songs for download on peer-to-peer networks did not amount to copyright infringement, as he erroneously instructed the jury.

The RIAA sought permission to appeal, a decision the judge has now rejected(.pdf) for the same reason he declared a mistrial.

Davis said "actual" distribution of copyrighted music must be shown -- meaning that the RIAA must prove that others are downloading the music being shared. The RIAA said it was virtually impossible to detect whether people were downloading music from an open peer-to-peer share folder on Kazaa, Limewire or other sharing services.

A Thomas retrial is scheduled for March 9. Appeals of mistrials normally require the trial judge's approval.

The case may not seem important given the RIAA's announcement two weeks ago that it would refrain from filing new cases. The RIAA announced that, instead, it would partner with internet service providersto shut off internet service to repeat copyright scofflaws the RIAA detects sharing music online. And it announced it would continue with cases still in the "pipeline."

But as we pointed out last week, the so-called "making available" argument in the Thomas case is the same legal position the RIAA is taking under its new approach. For the new campaign, internet subscribers who RIAA detectives discover "making available" songs on peer-to-peer networks three times could have their internet access discontinued.

The RIAA has sued more than 30,000 people in five years, all on the basis of "making available" copyrighted music on the internet for others to download. During that five-year campaign, judges have issued conflicting opinions on whether "actual" distribution or "making available" was the standard to prove copyright infringement in an online world.

Most of the RIAA's cases settled out of court for a few thousand dollars -- meaning the Jammie Thomas retrial is perhaps shaping up to be a test case for the RIAA's new copyright strategy. The test likely won't come at trial, but in an appeal of the second trial's outcome as neither the appellate courts nor the U.S. Supreme Court has squarely ruled on the issue.

See Also:

• File Sharing Lawsuits at a Crossroads, After 5 Years of RIAA ...
• Hollywood Control of DVD-Copying at Crossroads
• Analysis: RIAA Strategy Shift Mired in Murky Legal Waters
• RIAA Decries Attorney-Blogger as 'Vexatious' Litigator
• RIAA Qualifies Statement on No New Copyright Lawsuits
• RIAA Appeals Jammie Thomas Mistrial
• RIAA, MPAA Converging on Political Conventions
• Universities Baffled By Massive Surge In RIAA Copyright Notices ...
• Former Teen Cheerleader Defies RIAA Over $7400 File Sharing Tab ...
• No ISP Filtering Under New RIAA Copyright Strategy

Illustration: Modernhumorist

Full post as published by Threat Level on December 29, 2008 (boomark / email).