[Infowarrior] - RIAA's Thomas Appeal Denied

[Richard Forno]

RIAA Thomas Appeal Denied; Retrial Likely to Set New Copyright  
Infringement Course
By David Kravets EmailDecember 28, 2008 | 1:36:49 AMCategories: RIAA  
Litigation

http://blog.wired.com/27bstroke6/2008/12/judge-denies-ri.html

A federal judge is denying the Recording Industry Association of  
America's request to appeal his decision granting a retrial in the  
RIAA's only file sharing case to go to trial.

U.S. District Judge Michael Davis of Minnesota declared a mistrial in  
the Jammie Thomas case months ago and nullified the jury's $222,000  
award against the Minnesota woman for sharing 24 songs on the Kazaa  
network. The judge declared a mistrial a year following the 2007 trial  
after concluding that making available copyrighted songs for download  
on a peer-to-peer networks did not amount to copyright infringement,  
as he erroneously instructed the jury.

The RIAA sought permission to appeal, a decision the judge has now  
rejected (.pdf) for the same reason he declared a mistrial.

Davis said "actual" distribution of copyrighted music must be shown --  
meaning that the RIAA must prove that others are downloading the music  
being shared. The RIAA said it was virtually impossible to detect  
whether people were downloading music from an open peer-to-peer share  
folder on Kazaa, Limewire or other sharing services.

A Thomas retrial is scheduled for March 9. Appeals of mistrials  
normally require the trial judge's approval.

The case may not seem important given the RIAA's announcement two  
weeks ago that it would refrain from filing new cases. The RIAA  
announced that, instead, it would partner with internet service  
providers to shut off internet service to repeat copyright scofflaws  
the RIAA detects sharing music online. And it announced it would  
continue with cases still in the "pipeline."

But as we pointed out last week, the so-called "making available"  
argument in the Thomas case is the same legal position the RIAA is  
taking under its new approach. For the new campaign, internet  
subscribers who RIAA detectives discover "making available" songs on  
peer-to-peer networks three times could have their internet access  
discontinued.

The RIAA has sued more than 30,000 people in five years, all on the  
basis of "making available" copyrighted music on the internet for  
others to download. During that five-year campaign, judges have issued  
conflicting opinions on whether "actual" distribution or "making  
available" was the standard to prove copyright infringement in an  
online world.

Most of the RIAA's cases settled out of court for a few thousand  
dollars -- meaning the Jammie Thomas retrial is perhaps shaping up to  
be a test case for the RIAA's new copyright strategy. The test likely  
won't come at trial, but in an appeal of the second trial's outcome as  
neither the appellate courts nor the U.S. Supreme Court has squarely  
ruled on the issue.