Intellectual Property Law

A conservative think tank lashed out at U.S. District Judge Michael Davis on Monday, calling his mistrial decision (.pdf) in the Jammie Thomas music sharing lawsuit  "unreasoned,"  "unreasonable" and  "injudicious."

The new position paper (.pdf) from the  Progress and Freedom Foundation says the judge's September ruling is riddled with "profound flaws" that "must be exposed before they mislead other jurists."

Davis' decision overturned a $222,000 Minnesota jury verdict against Thomas, setting the stage for a new trial.

The Washington-based PFF's staff and board are filled with former Reagan administration and other government officials. Monday's publication, "Thomas on the Making-Available Right: An Unreasoned and Unreasonable Decision," comes as the Recording Industry Association of America is demanding Judge Davis allow the record labels to appeal the decision to a higher court before a retrial commences. The trial is currently set for March.

Davis, a President Clinton appointee, tossed the jury's October 2007 verdict after concluding his jury instructions made it too easy for panelists to find Thomas liable for infringing 24 music tracks on the Kazaa file sharing program. Davis had instructed jurors Thomas was liable for infringement solely for having music in an open share folder on a peer-to-peer network, even without evidence that anyone had downloaded the music illegally.

It was an important decision, resting at the heart of what proof is required to ding a file sharer for copyright infringement, with fines totaling up to $150,000 per music track.

The RIAA has issued about 30,000 lawsuits. Most have settled out of court. Rulings on the so-called "making available" argument have been all over the map. The U.S. Supreme Court has never ruled in a file sharing case.

Only one federal judge has sided with Davis. But the RIAA eventually won a $40,000 judgment from the judge, before trial, after the court said the defendant had tampered with evidence. But a Texas judge last month sided with the RIAA in a case against a teenager accused of "making available" music on a file sharing network.

In declaring a mistrial in the Thomas case, Davis wrote that "actual" distribution of music files was required. The RIAA countered that infringement was implied (.pdf), and that it was next to impossible to demonstrate somebody else downloaded files that Thomas publicly made available.

Still, the decision, even if ultimately accepted by the U.S. Supreme Court, does not kill RIAA lawsuits. In every case, the RIAA downloads music files from the open share folder. Judge Davis said the 24 downloads allegedly made from Thomas' share folder could be used as evidence of infringement. (A looming issue, however, is that the RIAA's investigators are not licensed, which could become an evidentiary issue but so far has not.)

Thomas Sydnor II, a Progress and Freedom Foundation senior fellow, blasted Davis for failing to follow case law that found pedophiles were guilty of distributing child pornography for solely having kid smut in an open Kazaa share folder. Snydor wrote that Davis "found these on-point analyses of the ordinary meaning of 'distribute' irrelevant."

Sydnor, a former copyright adviser to the U.S. Patent and Trademark Office and the Senate Judiciary Committee, said the Thomas decision misread or disobeyed precedents, federal treaties, scholarly reviews and the three branches of government.

In his mistrial decision, Davis concluded the RIAA's position "is simply not reasonable."

Sydnor seized on that language.

"And with that, Thomas collapsed its rickety tower of clashing results, unreasoned decisions, and distinguished precedents," Snydor wrote. "This extreme claim was itself unreasonable, and it triggered cascading absurdities."

Illustration: Modernhumorist

See Also:

• Thomas Demands Retrial in RIAA $222000 Verdict
• RIAA Decries Attorney-Blogger as 'Vexatious' Litigator
• Beckerman: RIAA's 'Vexatious' Charge Reeks With 'Falsehood and ...
• Retrial Date Set in RIAA v. Thomas
• RIAA Decries Texas Woman as 'Vexatious' for Demanding File Sharing ...
• Judge Declares Mistrial in RIAA-Jammie Thomas Trial
• MPAA Waffling on Piracy Costs; RIAA Says Illicit CDs Worth $13.74 Each
• File Sharer Settles with RIAA for a Whopping $756 a Song