p2pnet - rss feed: Jammie Thomas case bodes ill for RIAA
p2pnet news view | RIAA News:- If Tanya’s Andersen’s cut-and-dried win against Vivendi Universal, EMI, Warner Music and Sony BMG’s RIAA has proved once again that standing up to bullies is always a good idea, the case against Jammie Thomas, another single mum, shows the RIAA up for what it is:
A sham.
BusinessWeek, a major US publication, highlighted the Andersen saga, and now Richard Murdoch’s Wall Street Journal has picked up on the Thomas farce.
A Duluth, Minnesota, civil jury found her guilty off copyright infringement and awarded the multi-billion-dollar labels almost $250,000 against her.
Judge Michael Davis (centre) instructed the jury of Thomas’ peers that making songs available for distribution (by having them in a folder which might or might not be accessible online) was copyright violation and that the Big 4 didn’t have to prove actual distribution.
However, neither Brian Todder, Thomas’ lawyer, nor RIAA attorney Richard Gabriel had told Davis about a federal district court case in Phoenix which said the opposite.
Now Davis is, from all accounts, on the verge of ruling a mistrial and, “If one is granted, one outcome could be a higher bar for what record labels need to prove to demonstrate that copyrights have been violated,” says Sarah McBride in the WSJ, going on, “For example, evidence that more than a handful of songs on a shared file folder were distributed to others may be needed.”
The labels Record say their “investigators” [read the discredited MediaSentry] download a “selection of songs, proving distribution” and if the songs were “illegal copies to begin with,” they can “generally prove that, too, they say,” according to the story, which has RIAA spokesman Jonathan Lamy declaring:
“Whatever the court decides, it was not the ‘making available’ issue that prompted a jury to unanimously decide that Ms. Thomas had massively and deliberately committed music theft. And regardless of this particular question, we do have complete downloads of songs in the case against Ms. Thomas, as we do in all our download cases.”
McBride goes on »»»
The RIAA first used the “making available” argument in a case three years ago involving Mr. Beckerman’s client Denise Barker, whom the RIAA says had a computer with more than 600 songs available in a shared folder. That means anyone else on her file-sharing network, Kazaa, could take the songs they wanted, free. The RIAA says simply making the songs available constituted a copyright violation. Mr. Beckerman argues it did not.
Mr. Beckerman’s argument appears to be making headway. In a recent federal-court opinion in Manhattan in the Barker case, which was otherwise generally favorable to the RIAA, Judge Kenneth Karas wrote that “the support in the case law for the ‘make available’ theory of liability is quite limited.” The case, still in pretrial stage, has just been assigned to a new judge, Richard Sullivan, because Judge Karas has moved to another district.
The Thomas case in Minnesota is important because if it moves forward quickly and changes the previous decision, it could set a precedent that could help Ms. Barker and dozens of other defendants. Many defendants are already trying to chip away at the RIAA’s argument that making songs available is enough to prove copyright violation.
At the University of Maine, for example, law students working at a legal clinic are helping some of their fellow students caught in a batch of lawsuits filed by the RIAA last year. The clinic staffers assigned to the case are using several arguments to fight the charges, including the position that making files available doesn’t equal distribution.
In some courts, judges have sidestepped the issue. And in at least one court, the defense has not panned out. A federal judge in Eugene, Ore., upheld the RIAA’s position on availability in late 2006. And many legal experts cite a 1997 ruling from the 4th U.S. Circuit Court of Appeals, in which the judge ruled that making a copyrighted work available for library lending does amount to copyright violation, even if nobody borrows it. However, appeals-level decisions in other circuits contradict that ruling.
Meanwhile, “Because of the legal fog surrounding the issue, some, including Mr. Toder, say the Minnesota case could wind up in the Supreme Court,” adds the WSJ.
But There’s no maybe about it.
That’s where it’ll go.
.
.Stumble It!
cut-and-dried win - Word of Tanya Andersen RIAA triumph spreads, August 15, 2008
Wall Street Journal -Music File-Sharing Decision To Have Broad Impact, August 15, 2008
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