Judge hints he will declare mistrial in Thomas case

The judge in the Jammie Thomas copyright-infringement case is likely to declare a mistrial because of his reliance on the RIAA's specious "making available" theory, Wired reports.

Last year, a Minnesota jury may headlines by the RIAA a $220,000 verdict against Thomas (pictured). But the verdict was based on jury instructions that defined "distribution" as merely "making available" songs for download. In May, Judge Michael Davis ordered both sides to brief arguments on whether that instruction was "manifest error."

At the hearing, the judge said he expects to issue a ruling by the end of September, and strongly hinted that he will order a new trial.

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 question is whether Congress intended a copyright holder to have to prove a distribution of a copyright work. The judge apparently noted that Congress did not explicitly allow distribution to be implied without proof. "Why didn't Congress do that?" the judge asked.

"There is nothing in that language that the plaintiff must demonstrate a transfer," Verrilli said.

The RIAA's argument is essentially that it can't prove distribution and so it must be able to proceed on the mere presence of the files in a folder. If it can't imply distribution, Verelli said, "the distribution right doesn't mean anything." Thomas' attorney, Brian Toder, said the RIAA wants the district court to "proscribe a new right of recovery."

"Would Congress really fashion a statute where a plaintiff doesn't have to prove liability? They have to prove every element that a statute requires. That is good public policy.