Intellectual Property Law

The federal judge who oversaw the Recording Industry Association of America's lawsuit against Jammie Thomas said Thursday he might have erred with one of his instructions to the jury, and is considering granting a new trial.

In response, an RIAA spokeswoman said, "if we have to re-try the case, we will do so without hesitation."

U.S. District Court Judge Michael Davis, who presided over the nation's only file sharing case to go to a jury, noted in a brief order (.pdf) Thursday that, under federal case law, infringing a copyright likely requires actual dissemination of the pirated content, not merely making copyrighted works available.

Jammie Thomas testifying in her civil trial last October, while U.S. District Judge Michael Davis watches from the bench.
Courtroom sketch: Wired News/ Cate Whittemore

In October, Davis instructed jurors that infringement occurs the moment a Kazaa user makes copyrighted music available to others from their share folder -- an instruction he now regards as a "manifest error of the law."

The Duluth, Minnesota, jury found Thomas liable for infringement and awarded the music industry plaintiffs $222,000 for 24 songs.

The so-called "making available" argument is at the center of the legal battle over file sharing. But whether Thomas could ultimately prevail on a retrial is unclear. After three days of testimony, it took jurors only five minutes to conclude that Thomas was liable, and a few more hours to affix a price tag.

One of the cases Judge Davis cited in his order Thursday is also something of a double-edged sword for the defense. In that April decision,  Atlantic v. Howell, an Arizona judge said that merely making a copyrighted work available for downloading wasn't infringement. But the judge also held that the RIAA's own investigators can effectively turn it into an infringement just by downloading a copy from the share folder involved.

In Thomas' case, the Recording Industry Association of America's investigative arm, MediaSentry, did just that: it downloaded the 24 songs from Thomas' share folder. The RIAA has sued more than 20,000 individuals for infringement, and MediaSentry generally downloads files from each target before they are sued.

The U.S. Supreme Court has never directly ruled on that tactic, nor on the "making available" argument.

Jammie Thomas was hesitant to declare victory. "I'm happy with this turn in events," she said in an e-mail.  "Until a firm decision is made between myself and my attorney, that's the only response I have.  Have a good day."

Brian Toder, Thomas' attorney, said he would represent Thomas at a retrial.  "We fought tooth and nail to not have that 'making available' instruction," he said.

He added that the downloads MediaSentry made should not count against her client. "In order to infringe somebody, you have to infringe on them without their permission."

Cara Duckworth, an RIAA spokeswoman, said the judge's order "relates to a single jury instruction involving a technical copyright issue."

Duckworth added: "This technicality does not change the overwhelming facts and evidence that ultimately proved Ms. Thomas? liability. Although we do not believe that the court should disturb the unanimous verdict of the 12 jurors, if we have to re-try the case, we will do so without hesitation."

Judge Davis has scheduled a July 1 hearing on the issue.

See Also:

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• RIAA Believes MP3s Are A Crime: Why This Matters -- Updated
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