New hope for accused file-sharer
The judge in Capitol v. Thomas -- the first of the RIAA's lawsuits against individual file-sharers to go to trial, it resulted in a $222,000 judgment against a single mother in Minnesota -- threw the verdict into doubt today. Defendant Jammie Thomas had moved for a new trial on the grounds that the award was excessive and unconstitutional. In response, U.S. District Judge Michael J. Davis issued an order calling for a hearing on a different issue: whether he erred in instructing the jury that simply making a song available for others to download violated copyrights. He gave that instruction at the request of the labels' attorney, Richard Gabriel, who has since left the case to take a seat on the Colorado Court of Appeals.
Davis wrote that the instruction may have run counter to a 1993 ruling by the appellate court for his district, the Eighth Circuit Court of Appeals, which "appears to require that actual dissemination occur in order to infringe the distribution right under the Copyright Act." (Davis added, "Neither party presented this Eighth Circuit case to the Court," which is a not-so-subtle admonition against bad lawyering.) He also cited the recent decision by a District Court judge in Arizona to reverse himself and hold that making available doesn't amount to infringing. Clearly, the momentum on that issue has turned, complicating the RIAA's campaign against file-sharing piracy in intriguing ways.
Whether this actually helps Thomas is another question. The RIAA appeared to have a strong circumstantial case against her, and the jury didn't buy her testimony. It may be a relatively simple matter for the RIAA to show that the files in question were, in fact, distributed -- to its own contractor, MediaSentry. Of course, there's some argument that distributions to an RIAA contractor can't be considered infringing....
Thanks to Recording Industry vs. The People for calling my attention to the ruling.
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If we're getting into minutiae...
No distribution of copies (as in their physical despatch) can occur on the Internet because what we imagine to be distribution is actually the relayed reproduction of copies. 'Distribution' is simply a metaphor.
If I 'send' you a file, it never actually leaves my hard disk (though in some cases the space it occupies may be automatically marked for reuse, 'deleted'), instead a bucket brigade of intervening copiers propagates information necessary to manufacture a representation or copy of the file at umpteen intervening stages and ultimately on your hard disk. With BitTorrent, the source usually comprises several computers.
A similar process occurs if I make a file 'available' for copying. The only difference is that you request that my computer 'sends' you the file - and I have instructed my computer to accede to such requests and to advertise that this service is available.
So, what people are terming 'distribution' may be more accurately described as complicit (possibly collaborative) manufacture of copies.
It's probably moot though. :-\
Posted by: Crosbie Fitch | May 16, 2008 at 01:23 AM
Uh, she's not an "accused" file sharer. She was convicted.
Posted by: will smith | May 21, 2008 at 03:57 AM
Hmm. Is OJ Simpson a convicted murderer? A civil jury found him liable, but didn't "convict" him of any crime. Ditto for Jammie Thomas.
Posted by: Jon Healey | May 21, 2008 at 07:37 AM