Judge Davis' Decision Throwing Out RIAA Jury Verdict Against Jammie Thomas
Ruling that he had given an incorrect instruction to the jury, U.S. District Judge Michael Davis has granted Jammie Thomas' motion to vacate the $220,00 jury verdict against her in the widely-watched Kazaa file sharing case, Capitol Records Inc. v Thomas. Click here to read Judge Davis' September 24, 2008 decision granting the motion and ordering a new trial.
The offending jury instruction instructed the jury that "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown." In seeking to overturn the verdict, Thomas argued that merely making a work available to the public does not constitute a "distribution" under the Copyright Act. Instead, she asserted, a distribution only occurs when a defendant actually transfers possession or ownership of copies of a work to the public.
The plaintiffs, members of the RIAA, argued that merely making a work available for distribution is sufficient. This is also the position taken by Register of Copyrights, Marybeth Peters, in a 2002 letter to Congress: "Making [a work] available for other users of [a] peer to peer network to download . . . constitutes an infringement of the exclusive distribution right, as well as the production right." Noting that the Register of Copyright's interpretation is not binding, Judge Davis sided with Thomas on this issue.
A second issue addressed by the Court is whether infringement can be found based on downloads made by the RIAA's agent, MediaSentry, from a shared folder on Thomas' hard drive. Noting that a copyright owner cannot infringe its own copyright, Thomas argued that downloads initiated by an investigator can not form the basis for a copyright violation because the investigator acts with the permission of the copyright owner. Judge Davis disagreed, holding that the act of "provid[ing] the copyrighted works for copying and plac[ing] them on a network specifically designed for easy, unauthorized copying" could constitute sufficiently substantial participation by Thomas in the distribution of the works to the RIAA investigators to support a finding of infringement. However, because his jury instruction had permitted the jury to find against Thomas merely because she made the works available without also finding finding that an actual distribution had taken place, a new trial was required.
Noting that Thomas had allegedly infringed the copyrights in only 24 songs -- the equivalent of three CDs, costing less than $54 -- and clearly frustrated by the difficulty of applying pre-Internet legal principles to peer-to-peer infringement claims, Judge Davis called the $220,000 verdict "wholly disproportionate to the damages suffered by Plaintiffs" and "implore[d] Congress to amend the Copyright Act to address liability and damages in peer-to-peer network cases such as the one currently before this Court."
David Kravets' blog at Wired provides more information about the history of this lawsuit as well as comments by the parties' attorneys.