Bad News for RIAA? Judge to Reconsider Infringement Standard

[WSJ_law_blog]

Michael Davis, a federal district court judge in Minnesota, is apparently hung up on the following question of law: When it comes to copyright infringement liability for file-sharing, is it enough that the defendant merely made the music available to others, or must the plaintiff — e.g. the Recording Industry Association of America — go one step further and prove that actual distribution took place? Click here for the WSJ story, from the WSJ’s Sarah McBride.

Here’s some context: Last year, a jury in Minnesota federal court found the wonderfully named Jammie Thomas liable for copyright infringement based on songs the RIAA said it found in her computer. Thomas got hit with a $222,000 verdict. But now, as the WSJ reports, Judge Davis believes that his jury instructions might’ve been wrong. He told the jury that merely making songs available online for distribution to others was a copyright violation and that the record companies didn’t have to prove distribution took place. He’s since learned of a federal district-court case in Phoenix that ruled that making songs available was not copyright violation. Now, in a move that could portend bad news for the RIAA, Judge Davis says he might give Jammie Thomas a new trial.

“Whatever the court decides, it was not the ‘making available’ issue that prompted a jury to unanimously decide that Ms. Thomas had massively and deliberately committed music theft,” says Jonathan Lamy, a spokesman for the RIAA. “And regardless of this particular question, we do have complete downloads of songs in the case against Ms. Thomas, as we do in all our download cases.”

Jammie Thomas, whose shared-file folder included Green Day’s “Basket Case” and Journey’s “Don’t Stop Believin’” maintains “that these songs were never on her computer,” says Brian Toder, her lawyer. Toder calls the RIAA’s evidence “circumstantial” and says somebody else could have hacked into her computer.

For an insider’s take on these kinds of suits, check out Ray Beckerman’s Recording Industry v. The People blog. Beckerman, a New York lawyer, represents defendants in file-sharing cases.