“Shall We Play a Game?”

In a turnabout, the judge in the Thomas-RIAA case is indicating a new trial for the case. His cover is that he erred in procedural instructions to the jury. My gut says the judge is having second thoughts having reviewed other cases and assessment of the ‘distribution’ component of Copyright 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.
Thomas_testimony
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.

What this shows is that our legal system is not infallible. Judges do make errors and ordinary citizens are the lesser for the loss of justice before notches. Best guess is that this is not a situation that will overturn the original award. The error was procedural not a fact of case law. So the result will probably be the same.

But our legal system should not be a game.

Linky.