Internet, record labels
The judge in the Jammie Thomas case – the first case where the US record labels secured a criminal conviction for illegal file sharing has notified attorneys for both sides that he’s considering granting a new trial on the grounds that he improperly instructed the jury about what constitutes illegal file-sharing on the internet. U.S. District Judge Michael Davis said in an order filed in Minneapolis that he may have made a “manifest error of law” last October when he instructed a Duluth jury that simply uploading songs to a music file-sharing network could be considered illegal distribution, even in the absence of proof that anyone received them. The jury found Thomas, 30, willfully violated the copyrights of six recording companies and that Thomas, operating on her home computer under the user name “tereastarr” on the Kazaa file-sharing network, copied or distributed 24 songs, and it set damages at $9,250 for each alleged infringement. Thomas’ s attorney said the award (totaling $222,000) was excessive and had already filed a motion asking Davis to reduce it. But Davis, in today’s order, wrote that he’ll consider granting a new trial on different grounds. “The Court is concerned that Jury Instruction 15 may have been contrary to binding 1993 Eighth Circuit [U.S. Court of Appeals] precedent,” Davis wrote. He then cited a case in which the appeals court “stated that `infringement of [the distribution right] requires an actual dissemination”’ or, in other words, proof that someone received the songs. Different judges have ruled different ways on the matter. Last month a federal judge at a pre-trial ruling in Boston said that merely making the songs available online is not copyright infringement. But a ruling by a New York judge took the opposite position. Judge Davis also observed the recent decision in Atlantic v. Howell (see above) in which a decision that had initially equated making a file available with file distribution was reversed and the Arizona court held that a copyright was only infringed if there was “actual dissemination of copies or phonorecords” – ie infringement took place when someone downloaded a track from the Kazaa folder, but not when the tracks were first put into the folder. The judge has ordered that attorneys for Thomas and the record companies submit briefs by May 29 on whether he erred. He wrote that he’ll hear oral arguments on those briefs on July 1 in U.S. District Court in Duluth.