Judge: Possible 'manifest error of law' in Thomas case

Judge: Possible 'manifest error of law' in Thomas case

Summary: In a huge break in the Capitol v. Thomas case – in which Jammie Thomas (right) was hit with a $220,000-plus verdict for copyright infringement – the judge in the case said he may have made a "manifest error of law" in his instructions to the jury.

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In a huge break in the Capitol v. Thomas case – in which Jammie Thomas (right) was hit with a $220,000-plus verdict for copyright infringement – the judge in the case said he may have made a "manifest error of law" in his instructions to the jury.

At issue is Jury Instruction No. 15, which told jurors to find Thomas liable if she "made available" copyrighted material:

[The court] instructed the jury that “[t]he act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.”

Thus in the Thomas case, she was found liable merely for having the files on her computer and publicly accessible via some P2P software, even though there was no proof that anyone actually downloaded them That is, there was no proof of distribution."

Acting on his own, Judge Michael Davis said he had discovered that the instruction appears to contradict controlling authority.

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.
The court also noted the recent decision in Atlantic v. Howell, in which a district court judge firmly held that the "making available" theory contradicted the Copyright Act. The judge ordered the parties to submit briefs on this issue by May 29.

Over at the RIAA v the People blog, Ray Beckerman thinks the RIAA's failure to bring the National case to the court's attention constitutes a breach of professional duty. (See ABA Rules of Professional Conduct, Rule 3.3(a): "A lawyer shall not knowingly . . . (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction know to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.")

If it is true that neither Mr. Toder nor Mr. Gabriel cited the National Car Rental case, then, in my professional opinion, Mr. Gabriel and those involved in briefing Capitol v. Thomas for the RIAA have breached their duty to bring to the Court's attention controlling contrary authorities. Certainly Mr. Gabriel was aware of the case, as it has been cited in numerous briefs which my office, and which other lawyers all across the country, have filed, in cases where the RIAA was seeking to foist its "making available" theory on the Court. Interestingly, the scheduled date of the oral argument, July 1st, is the same date that Mr. Gabriel starts his new job as a state court judge in Colorado, so that one of the other clones will have to face a very angry Judge Davis that day.

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33 comments
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  • I don't buy the argument...

    ...that a copyright holder should have to prove an actual distribution took place. Given the circumstances it's obvious to anyone who isn't clouded by RIAA hatred the files were there to be copied by anyone. Does this mean I can place software up on an FTP server and, as long as I don't keep logs, I'm safe from being hauled into court?
    ye
    • doh!!!

      That means innocent until proven guilty... you know, that funny little saying that makes our justice system better than anything else. Good grief!
      uwish
      • It means no such thing.

        If this is overturned it opens the door to anyone posting anything online without consequence.
        ye
        • Bit of a stretch, don't you think?

          But then, for an obvious RIAA shill such as yourself,
          perhaps not. Why, who knows what people will do, and
          with impunity, should this prevail? My gosh, think of the
          possibilities! People would post things online without fear
          of prosecution, such as anti-Bush rhetoric, or instructions
          on how to make moonshine. That would doubtless doom
          our nation, and the global society, as well. Thank God
          there are people like you out there protecting citizens from
          exposure to poorly conceived thoughts, suspect
          philosophy, or any type of political impropriety. We all owe
          you a debt of thanks.
          thetwonkey
          • Oh grow up

            [i]But then, for an obvious RIAA shill such as yourself, perhaps not.[/i]

            Why on earth do you think I'm an RIAA shill? Because I'm not jumping on the infringer can do no wrong bandwagon?

            I think it is absolutely ludicrous to expect the RIAA have to prove a file was actually downloaded. People are charged with drug dealing all the time based on the fact they posses a certain amount of drugs. Regardless of if the police can prove they've ever actually sold any. How is this any different?
            ye
          • Hardly ludicrous

            Here you have a person who downloaded songs illegally over a P2P network. That is clearly a copyright violation. That is not what is at issue. What is issue is her liability - at about $9,000 a pop - for redistributing the material.

            Now Congress has decided that people who distribute other people's content should face some stiff statutory fines. What the courts are looking at now is whether you should have to *actually distribute* in order to face those fines.

            The RIAA succeeded in getting a "making available" jury instruction. But as the court in Howell found that is not what the statute says. And as the judge here is considering, controlling appellate jurisprudence has held that actual distribution is required.

            So, yes, in the case of loading software to an ftp site, if there was no distribution you would not be liable for distribution. You should not be liable for making available without actual distribution.

            More to the point, she had no *intent* to distribute. She had intent to download. The software "made available" by default with no voluntary action on her part. It defies our traditional sense of fair play, to quote a phrase, to hold someone liable for something they took no voluntary action to do. Even so, if she had distributed she would be liable under the Copyright Act.

            On a re-trial, that is what the RIAA will have to prove and that seems eminently reasonable to me.
            rkoman@...
          • Wrong. The amount is not at issue.

            What is at issue is if making available constitutes infringement. The amount of damages is a completely different discussion and not one that I am interested in at this time.
            ye
    • Hmmm ...

      [i]I don't buy the argument that a copyright holder should have to prove an actual distribution took place. Given the circumstances it's obvious to anyone who isn't clouded by RIAA hatred the files were there to be copied by anyone.[/i]

      How is this different from a library having both books and copy machines on premises?
      Yagotta B. Kidding
      • Because the copy machines are there for fair use.

        You shouldn't be copying an entire piece of work on the copiers.
        ye
        • Making available

          The whole works are there, aren't they? Available for copying?

          Same as the Thomas case.
          Yagotta B. Kidding
          • They're there for [i]partial[/i] copying. They're also...

            ...there for borrowing. They're also there for use (read in it's entirety, research, etc) while there. IOW they're there for fair use use. Can the same be said for what this lady did?
            ye
          • Dodging the question

            Is, or is not, the library "making available" copyrighted works which others can copy?

            Any other argument (that somehow the library's copies aren't being copied in whole) gets right back to the Eighth Circuit law: there has to be more than a copyrighted work where someone can, should they choose to, copy.
            Yagotta B. Kidding
          • Library is within "fair use" - sharing music for free is not

            The library is making available a single copy that can be borrowed - someone is not going to take that single copy, photocopy it, and then keeping distributing more and more photocopies of that book. A book also takes much more time than the typical 4 minutes to consume (if it's a decent book, that is).

            There is a big difference between the written word and music - a book/article can be quoted in blocks and that can be considered fair use. If you take a musical foundation and base a song off of it, you have to pay royalties - think of "Under Pressured" and "Ice Ice Baby."
            solidary121@...
          • Just because you don't like the answer doesn't mean...

            ...it wasn't answered. The library is making the material available under fair use rights. As far as I know Mrs. Thomas was not. Now if you believe she was please state so and support it. Otherwise accept they're not the same.
            ye
          • One other thing. This I do agree with:

            "Andersen gets highest-ever attorney fees award against RIAA"

            http://arstechnica.com/news.ars/post/20080515-andersen-gets-highest-ever-attorney-fees-award-against-riaa.html
            ye
        • fair use...?

          [b]You shouldn't be copying an entire piece of work on the copiers. [/b]

          Ok... So to stretch this analogy a bit, you need to work on a paper. You go to the library. Find the appropriate research book and photocopy an entire chapter - for future reference, of course. The book itself can't be checked out. Your buddy is taking the same course you're working on and he needs the same chapter for his report. You give him a copy either by making two copies or by copying yours.

          So how is that different from someone ripping an entire album into MP3 format and then you downloading ONE track (one chapter, if you will) and then sharing it on his computer?

          By the RIAA/MPAA's way of looking at things - BOTH are equally in violation of copyright law and you're equally guilty.
          Wolfie2K3
  • You have a point

    but then again if no one copied or downloaded anything then no law was actually broken. How can you prosecute someone when no law was actually broken unless I am mistaken just having it available is not against the law. I am by no means a legal expert but it seems to me the burden of Proof is on them to make that she knowingly distributed copy-righted material, its not on her to prove that she didn't. Its the whole thing about you are presumed innocent until proven guilty.
    NoThomas
    • "Preponderance of the evidence"

      This was not a criminal trial. From what I read this criteria has been met.
      ye
  • RE: Judge: Possible 'manifest error of law' in Thomas case

    This judge should be removed.Gross incompetence
    telephonics
  • RE: Judge: Possible 'manifest error of law' in Thomas case

    Gross-- judge's judgement
    telephonics