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.