RIAA defendant Jammie Thomas may get new trial

Federal judge who presided over first RIAA peer-to-peer trial says he may grant new trial because of possibly flawed jury instruction.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

Jammie Thomas, the Minnesota woman who was slapped with a $222,000 penalty for allegedly sharing music on the Kazaa network, asked for a new trial way back in October 2007.

The surprising thing is that she may get one.

U.S. District Judge Michael Davis wrote Thursday that he was "contemplating granting a new trial." That's because, Davis said, he may have wrongly instructed the jury that merely making a copyrighted song available in a shared folder amounts to infringement. Oral arguments on this question are set for July 1.

Asking for a new trial is pretty standard, but the request isn't granted that frequently. The reason Davis is willing to consider it is that one case that the Recording Industry Association of America relied on is being reconsidered and a second, which neither side cited, suggests that an actual transfer has to take place. (The 1993 8th Circuit case, which is binding precedent, says that infringement "requires an actual dissemination.")

A good portion of the RIAA's case, at least in this aspect of the lawsuit, centers on the "making available" argument. Here's what I wrote last October:

What's important to remember here is that the RIAA's victory 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.

Since then, a federal judge in New York was skeptical of the "making available" claim--though acknowledging that an "offer to distribute" arguably amount to a distribution. In an even more important case, Atlantic v. Howell, a second federal judge took a dim view of the RIAA's "making available" theory, saying:

The court agrees with the great weight of authority that Sec. 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public. The statute provides copyright holders with the exclusive right to distribute "copies" of their works to the public "by sale or other transfer of ownership, or by rental, lease, or lending." Unless a copy of the work changes hands in one of the designated ways, a "distribution" under Sec. 106(3) has not taken place. Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.

Meanwhile, Thomas' appeal to the 8th Circuit is still under way.

So what will happen if Thomas receives a new trial? From the RIAA's perspective, it may not matter that much. When I was talking to the RIAA last month about one of its other cases, they said: "But in any event, we download complete copies of songs from the individual defendants in all our user lawsuit cases, thereby rendering the entire 'making available' issue irrelevant."