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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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RE: Denial doesn't change copyright law
By Regs on 10/31/2008 3:49:50 PM , Rating: 2
Furthermore, the prosecution has resources unavailable to the average criminal defendant. Therefore, it is imperative that
information which is essential to the defense in the hands of the prosecution be made available to the accused. If trials are
indeed searches for the truth rather than efforts to conceal it, full and fair disclosure [**89] is necessary to protect and
preserve the rights of the accused against the awesome power of the accusor.

Although extended appeals in criminal matters have been widely criticized, the need for review is amply demonstrated by this
matter. There is a substantial danger that our society, concerned about the growth of crime, will retreat from the safeguards and
rights accorded to the accused by the constitution. The need to combat crime should never be utilized to justify an erosion of
our fundamental guarantees. Indeed, the growing volume of criminal cases should make us even more vigilant; the greater the
quantity -- the greater the risk to the quality of justice.


RE: Denial doesn't change copyright law
By Regs on 10/31/2008 3:50:56 PM , Rating: 2
- Judge H. Lee Sarokin


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