RIAA Appeals Jammie Thomas Mistrial Ruling

Asks Judge Davis to allow a federal appeals court to review the case rather than force the parties to “invest unnecessary time and resources.”

The RIAA is certainly still reeling from US District Judge Michael Davis’ decision to declare a mistrial in its first ever successful prosecution of an accused file-sharer using the “making available” argument.


In the case of Jammie Thomas, Judge Davis said he erred in instructing the jury that simply making music available in KaZaA’s “shared folder” was the same
as copyright infringement, and that his error “substantially prejudiced” her rights. He also implored Congress to reform copyright law to prevent similarly “oppressive” awards in music file-sharing cases.


Based on the judge’s instructions, jurors later found her guilty of having some 24 songs in KaZaA’s shared folder and set damages of $9,250 for each.


But in May, after a series of federal court rulings, Davis notified attorneys in the case that he may have made a “manifest error of law” when he instructed the jury that simply making the songs available for sharing could be considered illegal distribution, even without proof that anyone actually downloaded them.

Attorneys for the RIAA then argued in a hearing last month that they showed proof that the songs were downloaded – by recording industry investigators. Thomas’ attorney countered that downloads by investigators authorized by the industry to receive them do not constitute copyright infringement.


Copyright-law guru Bill Patry pointed out that “…authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement.”


Simply put, you can’t authorize somebody to download copyrighted material and then charge the person who gave it to them with unauthorized distribution since the copyright holder in fact authorized it (Logic 101).


Judge Davis ultimately declared a mistrial early last month and the RIAA has been scrambling ever since. For it means that in nearly 5 years of litigation and suing tens of thousands of file-sharers it has little to show for it.


The RIAA is now appealing that ruling before the 8th Circuit Court of Appeals, the most Republican US Court of Appeals in the nation, with 9 of its 11 active judges (82%) appointed by Republican Presidents, and asking Judge Davis to allow the appeal to go forward in the interest of “judicial economy.”


From the RIAA’s petition:


As the case currently stands, the Court, parties, and a jury will have to prepare and participate in a second trial on the Defendant’s liability and damages. The trial will require substantial resources, as every witness except the defendant will be traveling from out of state.  And if the Eighth Circuit affirms the Court’s September 24 Order, the parties will simply proceed with that second trial, having eliminated the most substantial issue that either side would have for later appeal. However, if the Eighth Circuit reverses the Court’s September 24 Order, there will be no need for a second trial.  Because this case has the benefit of a full jury trial and verdict, it is unusually well suited for interlocutory appeal.  Although a second trial may ultimately be necessary, the Court ought not mandate that waste of resources before the Eighth Circuit even has the opportunity to determine whether a new trial is in fact required.

Ray Beckerman of Recording Industry vs the People said in remarks to the Duluth News Tribune that “the motion has the likelihood of being granted of a
snowball in hell.”


“In federal practice you can’t appeal from an ‘interlocutory’ order,” he continued. “Almost never is permission granted.”


Isn’t it nice to see the RIAA becoming so desperate.?

jared@zeropaid.com