MPAA says proof isn't necessary to convict Thomas

PC World columnist Scott Nichols summarizes the MPAA's arguments in Capitol Records v. Thomas as saying that proof is not required in a trial. The issue, you will recall, is whether mere proof that someone "made available" content is as good as proving that they actually distributed. Says the MPAA:

Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances.

Nichols makes this good point – "I never expected it would go so far as to claim that evidence is not needed in a court trial. If the MPAA wants to uphold copyright law, it still has to follow other laws--like the need for direct evidence to convict" – but misstates the standard of evidence. It is not direct evidence – circumstantial evidence is dandy – but it must at least be the evidence required by the law.

That standard, the EFF argued in an amicus brief (PDF), is actual distribution (via AfterDawn). The "plain meaning" of the statute says so:

"In sharp contrast to choices Congress has made elsewhere, the language of § 106(3) does not include any prohibitory language pertaining to offers to distribute, attempts to distribute, or the “making available” of copyrighted works. When Congress means to prohibit offers to act, as well as the acts themselves, it has done so expressly."