Judge in First File-Sharing Trial: 'Oops, Maybe You Do Need Actual Distribution'

Says that federal rulings that "making available" music in a "shared folder" doesn't constitute copyright infringement may mean that Jammie Thomas could get a new trial.

In light of a series of recent federal court rulings that have determined that simply putting music in a KaZaA's "shared folder" doesn't in itself constitute copyright infringement, that actual illegal distribution of music must take place, U.S. District Court Judge Michael Davis is considering granting Jammie Thomas, the first person ever convicted of illegal file-sharing, a new trial.

From the court brief:

The Court is contemplating granting a new trial for a different reason – on the grounds that the Court committed a manifest error of law when, in Jury Instruction No.15, it instructed the jury that “[t]he 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.”

If you recall, back in October of last year the RIAA accused 30yo Jammie Thomas of "making available" some 24 copyrighted songs in her KaZaA's "shared folder." She was eventually convicted and ordered to pay some $222,000 in damages after a jury deliberation of a mere 5 minutes.

However, it has been argued all along that the RIAA had to prove that actual illegal distribution of copyrighted material took place, which had not. Thankfully, judges in two recent federal court rulings, London-Sire v. Doe and Atlantic v. Howell, have come to this correct conclusion.

"Merely because the defendant has 'completed all the steps necessary for distribution' does not necessarily mean that a distribution has actually occurred," Judge Nancy Gertner said in London-Sire v. Doe. "It is a 'distribution" that the statute plainly requires."

"Merely making a copy available does not constitute distribution," later wrote Judge Neil V. Wake in Atlantic v. Howell.

So it's because of these recent rulings that Judge Davis now considers the possibility that he may have "...committed a manifest error of law" when he told the jury that putting music in KaZaA's "shared folder" is in itself copyright infringement.

"Publication" is not "distribution," and Congress' decision to use the latter term when defining copyright laws must take precedence.

Without illegal DISTRIBUTION the RIAA has no case.