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.
Related Posts
- 10 Law Professors Tell Court ‘Making Available’ Not Copyright Infringement
- RIAA Appeals Jammie Thomas Mistrial Ruling
- Judge in First File-Sharing Trial: ‘Oops, Maybe You Do Need Actual Distribution’
- File-Sharing Lawsuits – Could They Be Over?
- Judge Tosses Out RIAA’s First File-Sharing Conviction, Thomas Granted New Trial!
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This is great news!
“You can’t infringe your own copyright”
-great quote
How could the riaa make this judge believe anything? I thought the entire reason laywers were elevated to judge status was based on their ability to correctly interpret the law and if that is the case this man should have enough sense detect something wass amiss in the first place. I am not Monday Morning ‘quarter backing or making my comment ba sed on 20/20 hindsight. It has always been my position that the judge Jammie Thomas’ case was a idiot.
It is great news that you can’t infringe your own copyright but that still doesn’t let that blockhead judge off the hook for his inability to interpret law for himself then blaming others for his own stupidty. Still I have to give him credit for reviewing the manner and hopefully declaring the mistrial.
“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.”
I laughed so hard I almost shit myself. If this is held up (and with the air tight logic how could it not be?) then the entirety of the entertainment industries lawsuits will be a waste of money at best and legally frivolous (and thus opening them to counter-suit) at worst.
And like the article says Congress is never going to pass a statute that requires no burden of proof. There would be so many powerful interest groups and individual voters screaming at them that it would never get any father then committee (I highly doubt any legislator would even introduce such a bill). Even IF it passes it would be such a violation of the due process claws of the 5th and 14th Amendment to the US Constitution that the courts would throw the law out on the first legal challenge.
The industry is just going to have to change its business model.
@Gamer
Exactly……”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.”
That the “Judge cites the fact that the RIAA wrongly made him believe…” ANYTHING is ludicrous! Thinking the legal counsel for one of the parties involved is going to present a fair and complete representation of ALL the facts pertinent to a case is preposterous. It’s like the judge believing a used-car salesperson to be completely fair honest and aboveboard. It just isn’t going to happen! Of course said counsel is going to skew things to make his “injured party” appear in the best light. How can a judge be THAT naive?
It is a good thing thing that he has called for probable mistrial; but that doesn’t go far enough. Mistrial MUST be declared and he must recuse himself from the case. He is also open to malfeasance for sheer incompetance. If a judge is ruling on a case said judge is NEEDS to be at least as knowledgeable in the subject matter before him/her as the atturkeys arguing the case! If he isn’t then he is nothing miore than a buffoon in a black robe wasting OUR time and tax dollars while he diddles himself behind the banc listening to testimony he doesn’t comprehend.
Stupid or bribed my vote is on bribed…