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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 An Arizona ruling entered on similar arguments was revoked late last April, he added, and earlier this month a Florida federal court reached the same conclusion.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: Analogy
By JustTom on 5/16/2008 4:16:45 PM , Rating: 2
Your analogy is not much better since the purpose of the Kazaa shard folder is to make content available to anyone on that network. They were not illegally taken from her computer; copied CD's removed from your garage would be larceny.Now, if you were to put a sign out in front of your house that said "Free CD's no questions asked" you'd be closer to what happened here. Try it, see what happens.

RE: Analogy
By Oregonian2 on 5/16/2008 7:48:23 PM , Rating: 2
Or if you sat them on a public picnic table in a park.

RE: Analogy
By mindless1 on 5/16/2008 9:42:32 PM , Rating: 2
Not quite the same, there was no clear offering rather an abandonment scenario more akin to deleting the files instead of having in a shared folder, though if someone could upload to that folder or (s)he wasn't actually aware it was shared by the software then intent seems missing even if blame is still somewhat justified.

RE: Analogy
By emmet on 5/19/2008 4:12:19 AM , Rating: 2
Neither analogy is particularly useful.

The problem is that the RIAA, MPAA, and the software industry have always tried to conflate theft with copyright violation and promote this false equivalence whenever possible. These analogies both buy in to that notion and show why it is specious.

The music industry have whined about every audio reproduction innovation for over 100 years: recordable CDs, recordable audio cassettes, and so on, going right back to Sousa complaining to Congress that the gramophone would destroy the music business, which at the time depended on sheet-music sales.

This time around, they have succeeded in having copyright violation turned into a criminal offense in many jurisdictions through political lobbying. But persuading a few politicians (with weak arguments and large donations), and changing public opinion are two different things. Unless they manage to do the latter -- the comments above suggest that they have had limited success -- these laws may simply be nullified by juries.

"A politician stumbles over himself... Then they pick it out. They edit it. He runs the clip, and then he makes a funny face, and the whole audience has a Pavlovian response." -- Joe Scarborough on John Stewart over Jim Cramer

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