Rights groups file RIAA v Jammie Thomas brief
p2pnet news | RIAA News:- Four online rights groups have added their weight to that of 10 US law professors in support of Jammie Thomas, the mother of two who’s still the only one of the RIAA victims to actually go to court.
A jury decided Thomas had to pay $9,250 for each of 24 songs Warner Music, EMI, Vivendi Universal and Sony BMG’s RIAA claimed she’d infringed by sharing them online.
But judge Michael Davis, who’d presided over the civil trial, later admitted he’d made what he described as a “manifest error of law” in telling the jury 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”.
He also specifically invited “interested parties” to submit amicus briefs and professors Annemarie Bridy, University of Idaho; Michael W. Carroll, Villanova University; Ralph D. Clifford, Southern New England School of Law; Thomas F. Cotter, University of Minnesota; Jon M. Garon, Hamline University; Stephen McJohn, Suffolk University; Tyler T. Ochoa, Santa Clara University; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia responded, stating >>>
We understand that the Court has recognized a possible error in a jury instruction given in this action, and that it has solicited responses from amici to the following question: whether the Court committed a manifest error of law in instructing 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’.
We respectfully submit that the correct answer to this question is ‘yes’ …
Now, the EFF (Electronic Frontier Foundation), Public Knowledge, USIIA (United States Internet Industry Association), and the CCIA (Computer & Communications Industry Association) have filed an 18-page joint brief in Thomas’ support, “to address an issue whose importance reaches well beyond this case: the proper scope of the exclusive right of distribution as defined in section 106(3) of the Copyright Act, 17 U.S.C. ยง 106(3)”.
The brief goes on >>>
Ms. Thomas, like more than 20,000 other individuals [note - this is probably more like 40,000] , was sued by Plaintiffs for copyright infringement based on her use of peer-to-peer (”P2P”) file sharing software.
The jury was instructed 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.
This instruction was erroneous as a matter of law. The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work – a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.
More than just Ms. Thomas’ liability is at stake.
Acceptance of the “making available” theory could disrupt copyright law in a variety of other contexts. As will be discussed further below, several Plaintiffs sued a national radio broadcaster, XM Radio, based on a variant of the “making available” theory that they advance here. [...]
Copyright owners have also pressed this theory against Google, contending that the Internet search engine runs afoul of an expansive “making available” conception of the distribution right. [...]
And the Recording Industry Association of America has sent thousands of DMCA notices to colleges and universities based solely on evidence that students have made songs available for possible download by others. [...] As a result of these notices, students can suffer a range of consequences, including fines and permanent loss of access to their school networks.
Getting this issue right is also crucial in light of the extraordinary penalties that can follow from a finding of infringement. Copyright infringement is a simple cause of action, containing just two elements: proof of ownership and proof of use in violation of one or more exclusive statutory rights.
Because there is no need to allege or prove actual damage, proof of those two elements is a gateway to statutory damages that may be well out of proportion to any particular actual harm – as in this case, where Ms. Thomas was found liable for over $222,000.
Given the serious consequences that flow from copyright’s strict liability regime, the Court should resist Plaintiffs imprecations to expand that regime absent an unequivocal expression of Congressional intent. [Our text breaks.]
Click here for .pdf of the full brief.
And stay tuned.
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.Stumble It!
Jammie Thomas – Jammie Thomas: her story in her own words, November 2, 2007
submit amicus briefs – 10 law profs back RIAA victim Jammie Thomas, June 20, 2008
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