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Jammie Thomas likely to get another day in court

Headline here should be "EFF to court: Jammie Thomas judge was a dolt." Judgment in music-sharing case should be overturned because of erroneous jury instructions, says group.

A move's afoot to get a new trial for Jammie Thomas. She's the Minnesota woman a court ordered to pay the recording industry $222,000 for copyright violations related to sharing songs.

Jammie Thomas

You may recall that the jury never found that Thomas had downloaded any music but had infringed by making the music available for others to download. So Friday the Electronic Frontier Foundation, along with a coalition of consumer and industry groups, said the court's judgment should be overturned because of erroneous instructions to the jury.

The headline here should be: EFF to court: Jammie Thomas judge was a dolt. At the time, the instructions the jury heard posited the following:

The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.

But that was a mistake, according to the EFF (and a lot of copyright specialists who have since weighed in on the verdict.) Again, from the EFF submission:

The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work--a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.

This is potentially a big deal. If the so-called "making available" theory holds up, you're likely going to see some odd copyright decisions come down the pike.

Already, the EFF notes, Google's been the target of some copyright owners who have pressed their case using the theory. Ditto for the DMCA notices sent to colleges and universities "based solely on evidence that students have made songs available for possible download by others."

Even the judge in the case now acknowledgesthat he may have goofed up. In October, when the Thomas verdict came in, my colleague Declan McCullagh observed that the Recording Industry Association of America's victory was vulnerable.

(It) rests in large part on...the judge's decision that the record labels need only prove that Thomas made copyrighted music "available" on the Kazaa network. That means leaving the songs in a publicly accessible directory where they might possibly have been downloaded. Thomas confirmed earlier Monday that her appeal to the 8th Circuit will center on that point...It's true that ditching the "making available" idea and making the RIAA prove the songs were actually downloaded means its lawyers would have to work harder. And it wouldn't solve all of these problems above. But it would be a small step toward repairing some of the imbalances in copyright law today.

That's an important distinction. Based on what we know now, the courts agree. Bottom line: Thomas should get another day in court. And she likely will.