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RIAA v. Thomas will get a second attempt

The retrial for the RIAA’s landmark $222,000 judgment against Duluth, Minnesota woman Jammie Thomas will begin March 9, after a federal judge tossed out the original verdict last month.

In a first-of-its-kind four day trial last October, a jury found Thomas liable for copyright infringement at a rate of $9,250 per song. Of the 1,700 songs files that the RIAA said Thomas made available, it elected to seek damages on 24 of them – from artists such as AFI, Green Day, and Aerosmith – reaching the breathtaking grand total of $222,000.

U.S. District Court Chief Judge Michael Davis declared a mistrial last month, after finding that RIAA lawyers misguided the jury with an erroneous instruction: Jury Instruction No. 15 told jurors to consider the act of making a copyrighted song available for download (via a P2P client’s shared folder) equivalent to the act of infringement. Because Thomas was not found to have committed actual copyright infringement – proving a thing is impossible, claims the RIAA, because it cannot monitor all the different connections P2P clients make to each other – RIAA lawyers generally equate making available with actually trading music.

“Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online,” said RIAA attorney Timothy Reynolds last month. “[It] would solely benefit those who seek to freeload off plaintiff's investment.”

Davis announced he had doubts about the decision last May, after a slew of similar cases in Florida and Arizona ruled in the defendants’ favor, striking down the “making available” argument. Upon looking into the matter sua sponte – on his own accord – Davis says he found a 1993 ruling from the 8th circuit Court of Appeals that requires evidence of “actual dissemination of copies or phonorecords” in order to prove copyright infringement. The 1993 decision, which featured prominently in the Florida and Arizona decisions, was never mentioned in Thomas’ original trial.

The RIAA promised an appeal to Davis’ September order, “either now or after a full retrial.” (PDF)

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By johnbuk on 10/31/2008 11:19:51 AM , Rating: 2
It's even more than that...if "making available" is a crime, then the next step might be to say that anyone who has their computer connected to the internet is making available anything on that computer because it's possible for it to be accessed by others...sounds far fetched, but stating that someone cost the music industry $2000 for a song that might or might not have been downloaded illegally by someone is far fetched too.

Some people are also missing the point that the RAII's true goal with this is to set the "making available" precedent. Reading about this case in other places, the RAII is claiming that they will win the re-trial because they can prove that the songs in question were downloaded illegally. I'm guessing they probably can provide such proof but the reason they didn't want to bring that up in the first trial is because the next logical step (IMO) is that they can prove that someone made something available and that it was illegally downloaded by others, then they should have to provide proof of actual damages that occured as a result (i.e., how many times was it downloaded). The real issue is that the RIAA doesn't want to have to provide proof of actual damages because that is considerably more difficult to do and would likely greatly lessen the amount that they get from these lawsuits.

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