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Judge Admits Mistake in RIAA Piracy Victory |
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Last year, the record industry won a major battle when a jury found Jammie Thomas liable for piracy for making tracks available on Kazaa. This was the the first case against an alleged file-sharer to go to trial, and the outcome made headlines and bolstered the RIAA’s fight against it’s customers.
But now, the federal district court judge who presided over the trial may have changed his mind. Judge Michael Davis of Duluth, Minn., has stated that he might have “committed a manifest error of law.” He is considering negating the RIAA victory and ordering a new trial.
What has changed his mind? in the original case, Judge Davis instructed jurors that they could find Thomas guilty of piracy for having made tracks available for downloading via Kazaa — whether or not it was shown anyone actually downloaded the files. According to Davis, he originally planned to instruct jurors that tracks actually had to be downloaded to prove copyright infringement. But at the last minute, the RIAA convinced him to change his instructions — and instead he told jurors that merely making tracks available could constitute copyright infringement.
The jury found Thomas guilty of making 24 tracks available on Kazaa. They ordered the single mother to pay the RIAA $220,000 for infringement.
A lot has happened since then. In April, the record industry lost a major court battle when a federal judge in Phoenix ruled that placing music in a Kazaa folder doesn’t in itself infringe on the owners’ copyright. “Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution,” wrote judge Neil Wake in an RIAA suit against Arizona resident Jeffrey Howell. Wake also ruled that simply offering to distribute music does not infringe on the copyright owner’s rights.
Last month, A federal district court judge sided with the record industry on the same issue. Judge Kenneth Karas in New York ruled that placing tracks in a shared folder can violate copyright law because such activity “constitutes publication and an offer to distribute.” The ruling allowed an RIAA suit against Denise Barker to go to trial.
Now the scorecard stands at 2 to 1, in favor of the P2P public.
Oddly enough, although it may be necessary to show that music was actually downloaded to prove piracy, it’s not necessary to show that any music was downloaded illegally. In many instances of alleged piracy, record industry agents are the people downloading the files. Defense lawyers argue that such downloads are authorized and legal — and therefore they don’t violate copyright law. But Wake in Arizona didn’t buy that argument, and said any downloading could be evidence of illegal distribution.
A spokesperson for the RIAA stated that the judge “got the issue right the first time.” They vowed to continue the fight, returning to court as needed. “This technicality does not change the overwhelming facts and evidence that ultimately proved Ms. Thomas’ liability,” the RIAA spokeswoman stated.
However, the case raises an interesting question — how does the RIAA determine liability in this instance? If they have not shown that any downloading occurred (or at most, that RIAA agents downloaded tracks) how can there be a determination of damages to the record labels? Seems that damages are determined by the volume of lost sales to the labels — which might be 99¢ per download. In this instance, Thomas allegedly made 24 tracks available on a shared file at Kazaa. A judgment of $220,000 ($9,166 per track) implies a lot of downloading.
Judge Davis might want to take a look at that penalty. I suspect the amount represents a punitive award rather than actual damages to any plaintiff. In fact, it’s easy to argue that the entire lawsuit has been punitive, because the RIAA’s strategy is not to recoup losses from pirated music, but to deter future, potential P2P downloaders by raising the fear of prosecution (and outrageous fines).
Meanwhile, judge Davis is considering the new trial. He has asked each side to submit additional briefs, and oral arguments will be heard July 1.
