First P2P Conviction Likely to be Declared a Mistrial

Judge cites the fact that the RIAA wrongly made him believe that it didn't have to prove that any actual illegal distribution occurred, only that a person made it available for such purposes.

Jammie Thomas, the first person ever to be convicted for illegal file-sharing, appears to be close to having the case declared a mistrial after a series of federal court rulings made US District Court Judge Michael Davis rethink his original jury instructions that they didn't have to determine whether or not any actual unauthorized distribution occurred only that an individual made it available for others to illegally obtain copyrighted material.

"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," wrote Judge Davis in a court brief.

His decision was based in part on Federal Judge Neil V.Wake's ruling in Atlantic v. Howell who found as follows:

The general rule, supported by the great weight of authority, is that 'infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.'

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 § 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.

Furthermore, the only evidence of illegal distribution that the RIAA had was obtained by investigators who explicitly had its permission to download copyrighted material from Thomas's computer for the purpose of their investigation. This means that any copyrighted material they obtained was authorized distribution. Authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution was authorized, there could be no infringement.

"You can't infringe your own copyright," said Thomas's attorney, Brian Toder.

Almost a dozen copyright professors also weighed in on the case by filing a amicus curiae, or "friend of the court", brief:

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.

The RIAA has countered by arguing that it's impossible to prove that people other than its investigators have illegally download music.

"Because the transfer of files occurs in a direct connection between the distributor's computer and the recipient's, there is currently no way to capture the transfer as it happens," writes RIAA attorney Timothy Reynolds in a court filing. "Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online -and would solely benefit those who seek to freeload off Plaintiffs' investment."

Freeload? The RIAA should definitely know the definition of freeloading being that it's done so on the backs of artists for decades.

In any case, Toder, has told Judge Davis that if he didn't declare a mistrial than he would be inventing a "new right of recovery" for possible crimes and not actual ones.

"Would Congress really fashion a statute where a plaintiff doesn't have to prove liability?" Toder asked.

"They have to prove every element that a statute requires," he continues. "That is good public policy."

Judge Davis's decision will more than likely be to declare a mistrial in the case and nullify the only conviction the RIAA has ever obtained for illegal file-sharing. Being that Congress has written copyright laws that only govern an actual unauthorized transfer of copyrighted material and not a POSSIBLE one the case is pretty cut and dry.

To say that a person's liable for $9,250 USD for each song that somebody could have downloaded, not actually, but COULD HAVE, is the real crime here.