10 Law Professors Tell Court 'Making Available' Not Copyright Infringement

File "friend of the court" brief in Jammie Thomas case after Judge Michael Davis admits he may erred in the case and solicits public comment.

About a month ago US District Court Judge Michael Davis began, in his own words, "...contemplating granting a new trial for [Jammie Thomas, the first person ever convicted for illegal file-sharing in the United States]...on the grounds that the Court committed a manifest error of law when...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.”

In other words, the judge is rethinking his logic that simply putting music in KaZaA's shared folder mean that stuff was shared illegally. For it followed a series of federal court rulings that determined that actual illegal distribution of music must take place.

So Judge Davis has scheduled a new hearing for the case in August and has begun soliciting public opinion.

A group of 10 copyright scholars have weighed in so far and they squarely side with Jammie Thomas who, if you recall, was ordered to pay $220,000 USD for "making available" 24 songs in her KaZaA "shared folder."

They argue:

The plain language of the statutory text, as confirmed by other courts and leading commentators, compels but one conclusion: that merely making a work available to the public, whether over the internet or otherwise, by itself does not constitute a distribution. More precisely, because a defendant 'distributes' in violation of § 106(3) only when she actually transfers to the public the possession or ownership of copies or phonorecords of a work, no distribution is effected merely by making a work available for distribution on a peer-to-peer network.

With an increasing number of federal judges ruling that actual distribution must take place, it stands to reason that Thomas may finally prevail in the case come this Fall.