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RIAA lawyers may have mislead Minnesota judge, corrupting the jury's decision

Jammie Thomas, the Minnesota resident ordered to pay $222,000 to the RIAA last October, may get a second shot at trial due to a controversial – and possibly misleading – jury instruction.

In October, when Capitol Records v. Jammie Thomas wrapped up, members of the jury were told that the act of making music available for download was all that was needed to prove that Thomas infringed record labels’ copyrights – attorneys for the RIAA compared this to someone displaying pirate DVDs for sale at a table. The instruction likely cost Thomas her victory and a short while later the jury awarded plaintiffs $222,000 in damages for Thomas’ act of “making available” 24 songs for download.

Now, however, U.S. District Court Judge Michael J. Davis now thinks that the “making available” instruction was a mistake. He says that he found a 1993 ruling from the 8th Circuit Court of Appeals that requires “actual dissemination of either copies or phonorecords.” An Arizona ruling entered on similar arguments was revoked late last April, he added, and earlier this month a Florida federal court reached the same conclusion.

Neither side in Capitol v. Thomas presented the 1993 decision to him, said Davis. Oral arguments on whether or not a new trial will be held on July 1 in Duluth, Minnesota.

With precedent quickly shifting away from the content industry’s favor, the RIAA doesn’t seem fazed: “If we have to retry the case, we’ll do so without hesitation,” said RIAA attorney Richard Gabriel. Record companies can still prove that Thomas violated copyright, because files found on her computer have the same signatures as known pirated recordings – files that Thomas claims were copied from CDs. Beyond that, says Gabriel, evidence that investigators working for the RIAA were able to download music from her computer is more than sufficient to win a second trial.

“We've been saying all along that it was submitted to the jury on an improper theory,” said attorney and Recording Industry vs. The People co-author Ray Beckerman. “Now the judge recognizes his error and he realizes he was misled by record industry lawyers.”

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RE: Haha
By JLL55 on 5/16/2008 10:10:44 AM , Rating: 3
While I am glad there is going to be a retrial, I feel that the outcome might be very similar (though I hope with a less penalty) I believe that the fact the MediaSentry downloaded a copy results in dissemination. As per the previously cited cases within the article. I don't like it, but she is still guilty - hence why the RIAA is not really perturbed.

RE: Haha
By psychobriggsy on 5/16/2008 10:25:33 AM , Rating: 1
Is it illegal to disseminate a copyrighted recording to the owner (or agent) of the copyright holder?

Fact is, she most likely did download the music files 'illegally'.

Another fact is, she should only be fined the known damages (x3 even). Which are, well, 24 downloads, err, maybe $100 or so.

RE: Haha
By Bender 123 on 5/16/2008 10:45:07 AM , Rating: 2
I personally like the recent story of Universal Music being sued and arguing punitive damages for distribution of copyright works is unconstitutional and only the true retail value of the music should determine the penalty. They are even sighting their losses as precedent to help in this case, but refuse to acknowledge their own hypocracy when dealing with their own customers. I find it hilarious that they dont see that whats good for the goose...

RE: Haha
By TomCorelis on 5/16/2008 12:31:43 PM , Rating: 3
Is it illegal to disseminate a copyrighted recording to the owner (or agent) of the copyright holder?
The EFF brought that up in one of their briefs for the Arizona case, and the short answer is that the judge found that argument baseless.

RE: Haha
By Oregonian2 on 5/16/2008 1:48:11 PM , Rating: 2
As I recall, she wasn't "gotten" for downloading songs. She was "gotten" for making them available for uploading even though it wasn't even attempted to be shown that any were uploaded. Certainly she should be found guilty of copyright infringement -- but that which she was found guilty of is the same as leaving a CD on your car seat with the door unlocked. Someone may be able to grab and copy it. Made available for copyright infringement. Likewise radio stations make songs available for copying too. Although she'd still end up at the guilty end of things, the basis of her previous conviction was absurd. Good to see that the judge has come this conclusion as well -- but sad that the obviousness of the absurdity wasn't seen earlier.

RE: Haha
By masher2 on 5/16/2008 2:03:04 PM , Rating: 1
> "that which she was found guilty of is the same as leaving a CD on your car seat with the door unlocked."

Not at all, as you're allowed to emperil your own personal copy of a CD at will. The situation is more akin to making an illegal copy, then leaving it on your car seat.

> "Likewise radio stations make songs available for copying too"

But they do so with the full permission of the copyright holder, hence the difference.

RE: Haha
By Shawn5961 on 5/16/2008 4:04:04 PM , Rating: 4
Not at all, as you're allowed to emperil your own personal copy of a CD at will. The situation is more akin to making an illegal copy, then leaving it on your car seat.

Then again, with the ways the RIAA has been trying to stretch intellectual property lately, I wouldn't be surprised if that got deemed illegal.

"What, someone stole your CD? Well, that's loss of profits for us, so we're gonna have to take you to court for $150,000 for allowing someone to steal our intellectual property."

RE: Haha
By Oregonian2 on 5/16/2008 7:41:34 PM , Rating: 2
So if she had actually ripped those songs from her CDs as she claimed and made them available on whatever it was she did, it would have been okay with the RIAA -- that she had downloaded them first before making it available is the problem? I thought it was absurd before but it's getting even harder to understand!

RE: Haha
By Xerstead on 5/16/2008 10:59:03 PM , Rating: 2
quote: more akin to making an illegal copy, then leaving it on your car seat.

Would that be a self-made copy for personal use in the car, so as not to damage the original cd, as previousaly allowed under 'fair-use'. Then 'allowing' that to be stolen.

RE: Haha
By mcnabney on 5/16/2008 10:29:55 AM , Rating: 2
The whole thing is BS.

If this line of legal action continues I think that we should drag the photocopier industry into it as well just to show the world how silly the idea is. There is no legal difference between copying a digital version of a song and photocopying pages out of a book. It is just a lot easier in this age to track down digital activity than to see who is making copies at the library.

RE: Haha
By masher2 on 5/16/08, Rating: 0
RE: Haha
By just4U on 5/16/2008 1:49:23 PM , Rating: 2
Well lets take a look at that from a different angle Masher..

We freely make available images for people to look at on sites. Viewed by tons of people. All without consent by the person who probably has a legal right to that image. Heck you can even right click and save. This is copying on a grand scale and it's common place.. So common place that most don't ever give it a second thought.

In a way that's the same thing as a song being copied and shared but it doesn't carry a penalty. (in most instances)

So whats the difference?

RE: Haha
By Oregonian2 on 5/16/2008 7:46:54 PM , Rating: 2
If you believe old gangster movies, murder was commonplace in some areas at some time in the past.

So if something is common, it's okay and should be thought of lightly?

RE: Haha
By just4U on 5/16/2008 9:28:32 PM , Rating: 1
You missed my whole point entirely... and we are not discussing murder which is a different matter entirely.

I don't question weather it's right or wrong. I really couldn't care less to be perfectly honest. It's just that the way these copyright laws are laid out and how we do things on a day to day basis can translate into so many types of copyright infringement its mind boggling. Trying to wade thru all that crap is likely to drive most of us bonkers. When is it ok? When is it not? What's the difference between this or that? I mean really...

Laws should make sense and protect everyone involved. Half the people (maybe more) are not even aware that they've done anything wrong.

RE: Haha
By BarkHumbug on 5/19/2008 5:15:17 AM , Rating: 2
Had to reply, I down-rated a post by a left-click accident... :)

RE: Haha
By hcahwk19 on 5/16/2008 10:54:42 AM , Rating: 3
Read the opinion of the recent Florida case and the Copyright laws. The judge said that a copyright holder, or an agent thereof, cannot infringe their own copyright. Basically, an RIAA copyright holder cannot a) download a song from a file sharer and claim copyright infringement, or b) use a third party agent (MediaSentry) to do so either. One cannot break their own copyright on any work. The judge said that what the RIAA will have to do is ACTUALLY trace a file back to the person's computer, as simply making a file available for download is NOT infringement.

RE: Haha
By JLL55 on 11/19/2008 2:55:46 PM , Rating: 2
Thanks! At the time I wrote it, I thought third party people counted... if not, I completely agree with you. THanks for the extra info! I hope the judge then throws out the case cause they really don't have "proof" that an unlawful dissemination occured IIRC.

"This is from the It's a science website." -- Rush Limbaugh

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