Apparently, it is RIAA day here at the govtech blog. The Wall Street Journal reported Friday on the upcoming decision in the Thomas case. Jammie Thomas, of course, was hit with $220,000 is statutory fines for copyright infringement. The verdict was based on a "making available" theory (see this article from April on the weak state of the theory). After that verdict, Judge Michael Davis alerted the parties he learned of an appellate case throwing more doubt on the theory -- a case not brought to him by either party -- and requiring briefs and oral arguments on the question. A decision on whether to re-try the case is expected in late September.
In National Car Rental System, Inc. v. Computer Associates Int’l, Inc., the Eighth Circuit stated that “‘[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’ [Emphasis added, citation omitted.]” 991 F.2d 426, 434 (8th Cir. 1993). This statement appears to require that actual dissemination occur in order to infringe the distribution right under the Copyright Act. Neither party presented this Eighth Circuit case to the Court.In oral arguments a few weeks ago, the judge was hinting strongly he would order a re-trial based on the faultiness of the "making available" theory.
About 35 minutes into the hearing, as RIAA attorney Donald Verrilli Jr. was set to urge Davis not to disturb the $222,000 judgment against Thomas for unlawfully distributing 24 songs, the judge said: “Certainly, I have sent a signal to both sides of where I’m headed.”The Journal notes:
The RIAA has taken legal action against about 40,000 people since 2003. Most are accused of illegally uploading music over the Internet by putting it in files where it can be taken for free by other Web users. Nearly every month, the RIAA files several hundred suits in federal court, with seemingly little impact on the amount of online piracy that has eaten away at the legitimate paying market for music over the past decade.
Many of those accused settle the cases for $3,000 to $5,000 rather than going through a costly court battle. Others simply ignore the RIAA's notices; the courts eventually make default judgments against these people.