A federal judge in Minnesota Wednesday ordered a new trial in a copyright infringement case involving a woman who last fall was told by a jury to pay US$222,000 to various record companies for illegally copying and distributing 24 songs.
In doing so, U.S. District Judge Michael Davis also rejected a key argument used by the Recording Industry Association of America (RIAA) in the Minnesota case and numerous others -- namely, that the mere act of making music available for download in a shared computer folder constitutes illegal distribution.
Davis' ruling is being seen as a setback for the RIAA's controversial campaign against music piracy, especially since he is now the third federal judge to have flatly rejected the trade group's "making available" argument. What isn't clear, though, is the extent to which his ruling will actually benefit the defendant in this particular case.
The litigation in question, called Capitol v. Thomas , involves Jammie Thomas, a Minneapolis resident who was sued by various record companies last year for allegedly copying a total of 1,702 songs and then making them available for distribution over the Kazaa file-sharing network. The case focused on 24 of the songs, and after a four-day trail, a jury found Thomas guilty of copyright infringement and ordered her to pay $222,000, or $9,250 per song, to the infringed parties.
Davis, who presided over the trial, overturned the verdict Wednesday, saying that his instructions to the jury were unclear on the question of whether making music available for download by itself constitutes infringement. In a 44-page ruling, Davis said his subsequent examination of the word "distribution" under the federal Copyright Act and other relevant statutes clearly showed that illegal distribution can occur only if there was actual dissemination of music.
The RIAA contended that Thomas had infringed copyrights simply by putting the songs into a shared folder on her computer that could have been easily accessed by any other Kazaa user. But, Davis wrote, "if simply making a copyrighted work available to the public constituted a distribution, even if no member of the public ever accessed that work, copyright owners would be able to make an end run around the standards for assessing contributor copyright infringement."
Coming on the heels of similar rulings by other judges in cases called Atlantic v. Howell and London-Sire v. Doe, the decision by Davis further undermines one of the pillars of the RIAA's effort to pursue alleged copyright infringers, said Corynne McSherry, an attorney at the Electronic Frontier Foundation, a digital rights advocacy group in Washington.
"What this means as a practical matter is that they are going to have to invest additional time and money to actually show that distribution has taken place," McSherry said. "If they allege something, they actually have to show it happened." The RIAA's strategy of trying to equate alleged intent to distribute with actual distribution clearly isn't not working, she added.
McSherry wrote a blog post about the issue on the EFF's Web site and included a link to Davis' ruling (download PDF). Defeating the RIAA's legal argument "is important as a matter of principle," she said. "We don't want to have a situation where we introduce a new legal theory through the back door."
Brian Toder, a Minneapolis-based lawyer who represents Thomas, said he was "very pleased" with the judge's decision to overturn the jury verdict. But he expressed skepticism about whether the ruling will alter the outcome of the case in a second trial. "The biggest effect of his decision is going to be on damages, more than liability," Toder said.
That's because each of the 24 songs that the trial focused on were in fact downloaded from Thomas' computer by the RIAA's investigator, in order to show the jury how easily accessible the songs were. Toder said the ruling by Davis makes it clear that he still considers those 24 songs to have been illegally distributed by Thomas, because actual dissemination did take place.
Hopefully, Toder said, the ruling will reduce the breadth of the alleged infringement in the eyes of a new jury. By referring in the first trial to the more than 1,700 songs in the shared folder on Thomas' computer, the RIAA "made a big deal of the magnitude of her conduct and how widespread the damages were," the attorney said. Based on Davis' ruling, the trade group won't be able to do that if there is a second trial, he claimed.
"I think it's fair to say that it is unlikely we will prevail in a new trial," Toder acknowledged. But he said that he hopes the damages assessed against Thomas will be "exponentially less" than the they were the first time around.
In a statement sent via e-mail, RIAA spokesman Jonathan Lamy said the judge's decision wasn't unexpected given the previous comments that Davis had made about the case.
"Regardless of this narrow issue, a jury of her own peers unanimously found Ms. Thomas liable for copyright theft and for causing significant harm to the music community," Lamy said. He pointed to public comments made by jurors who said they would have found Thomas guilty regardless of the "making available" argument. And, Lamy claimed, "we have evidence of actual distribution -- an assertion this court and others nationwide have made clear constitutes infringement."