Institute For The Future

Judge delivers blow to RIAA's dodgy "making available" theory

The crux of the RIAA's cases against music fans is the "making available" theory, meaning that they do not need to provide proof of transfer in order to claim copyright infringement, they just need to show that someone had files available to share on a P2P network. Last October, a jury in Minnesota found Jammie Thomas guilty of copyright infringement for 24 (mostly bad) songs. It was the first federal RIAA victory using this argument against a plaintiff, with a $222,000 judgment in their favor.

 

Today, however, a judge in the retrial declared a mistrial, throwing out the "making available" theory. She'll now go head to head with them again in another trial, but this time, the RIAA has to prove actual distribution.

 

From Wired blogs:

The legal brouhaha prompting Davis to declare a mistrial focused at the heart of all file sharing cases: What level of proof was necessary for the RIAA to prevail.

 

Davis had instructed (.pdf) the jury last year that the recording industry did not have to prove anybody downloaded the songs from Thomas' open Kazaa share folder. Davis read Jury Instruction No. 15 to jurors saying they could find unauthorized distribution -- copyright infringement -- if Thomas was "making copyrighted sound recordings available" over a peer-to-peer network "regardless of whether actual distribution has been shown."

 

But Davis had second thoughts and, without any urging from the litigants in the case, summoned the parties back to his courtroom in August, writing in a brief order that he may have committed a "manifest error of the law." He heard arguments from both sides and said he would issue a ruling soon.

 

With Wednesday's opinion, Davis made his revised position official and ordered a retrial -- one with different jury instructions.

 

"Jury Instruction No. 15 was erroneous, and that error substantially prejudiced Thomas' rights. Based on the court's error in instructing the jury, it grants Thomas a new trial," the judge ruled (.pdf).

 

The RIAA, which is the music industry's lobbying and litigation arm, fought hard to keep Jury Instruction No. 15 in play. The group told the judge that copyright infringement on peer-to-peer networks is implied, and that it shouldn't have to provide proof of an actual transfer -- because it's impossible.

 

"Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online – and would solely benefit those who seek to freeload off plaintiff's investment," RIAA attorney Timothy Reynolds said in a court filing (.pdf).

 

It was the third time a federal judge had ruled against the RIAA on the making-available claim. The decisions in the other two cases were in a pretrial stages, one case of which was dismissed in the RIAA's favor because a judge concluded the defendant had tampered with evidence and ordered him to pay $40,000.

 

Surely this will not end with another trial, but this latest blow to the making available theory is a great birthday present to me!