<Update>Further note from Ray Beckerman from Recording Industry v The People on the issue of whether MediaSentry's downloading would suffice for the distribution charge (see Investigator Downloading section below): "There still has to be sale or other transfer of ownership, or rental, lease, or lending. And the dissemination has to be to the 'public.' Very possible she will lose on 'reproduction right'. Unlikely RIAA will be able to make a case against her on 'distribution right'." </update> In the Thomas case Judge Michael Davis found that he gave an erroneous instruction at trial. The court granted the RIAA's jury instruction #15 that:
“The 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.”
Read Judge Davis' decision in Capitol v Thomas
If this was error – if the RIAA had to show actual distribution not mere availability – as the judge ruled it was, Thomas is entitled to a new trial. The RIAA argued the error was harmless because the jury would have convicted on the reproduction right in any case.
But the basis for vacating the jury's verdict and granting a new trial is whether the "errors misled the jury or had a probable effect on the jury’s verdict.” Slidell, Inc. v. Millenium Inorganic Chems., Inc., 460 F.3d 1047, 1054 (8th Cir. 2006). Since the jury verdict form didn't require the jurors to indicate whether their decision was based on a finding that Thomas violated the copyright reproduction right (exclusive right to reproduce) or distribution right (exclusive right to distribute), there is no way of reading the jury's minds.
Investigator downloading is distribution In one negative holding for RIAA opponents, Judge Davis ruled that MediaSentry's downloading of music from Thomas's computer is sufficient for distribution.
Thomas, herself, provided the copyrighted works for copying and placed them on a network specifically designed for easy, unauthorized copying. These actions would constitute more substantial participation in the infringement than the actions of the defendants in the Eighth Circuit cases who merely assisted in copying works provided by the investigators.
This is actually a huge negative for Thomas because it's a clear signal that on retrial, with proper jury instructions, RIAA can prove distribution.
Appeal to Congress In addition to invalidating the "making available" theory, the decision is notable for its public policy analysis of the current, Draconian copyright law. Ray Beckerman of Recording Industry vs the People, told me in email:
What is surprising, and gratifying, is that the Judge made his important, landmark, statement about the insanity of the RIAA's damages theory as well, and implored Congress to amend the Copyright Act to prevent any more outsized verdicts like this from occurring. This was important because it came from the very judge who had presided over the RIAA's first and only jury trial, one which was notable primarily for the massive, unanticipated, and completely ludicrous, award of 23,000 times the actual damages.
Here's the relevant language from the decision:
The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. ...
The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.
Thomas allegedly infringed on the copyrights of 24 songs the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.
Unfortunately, by using Kazaa, Thomas acted like countless other Internet users. Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive.