[Infowarrior] - Judge to RIAA: "attempted copyright infringement" is bogus

[Richard Forno]

September 24th, 2008
Capitol v. Thomas: Judge Orders New Trial, Implores Congress to Lower  
Statutory Penalties for P2P
Legal Analysis by Corynne McSherry
http://www.eff.org/deeplinks/2008/09/capitol-v-thomas-judge-orders-new-trial-implores-c

Joining the ranks of federal district judges in Arizona and  
Massachusetts, District of Minnesota Chief Judge Michael Davis today  
concluded [44-page PDF] that simply making a music file available in a  
shared file does not violate copyright law, and ordered a new trial in  
Capitol Records v. Jammie Thomas.

The case made headlines last year as the first peer-to-peer file- 
sharing case to go all the way to trial. In October 2007, a jury held  
Thomas liable and awarded $222,000 in damages to the record companies,  
based in whole or in part (it wasn't clear) on an instruction that  
merely making a file available violates a copyright owner's  
distribution right. Earlier this year, Chief Judge Davis said he was  
concerned that he might have made a mistake with that instruction and  
asked for more briefing on whether Thomas deserved a new trial. EFF,  
joined by Public Knowledge, the United States Internet Industry  
Association, and the Computer and Communications Industry Association  
filed an amicus brief urging the Court to reject the RIAA's making  
available theory.

One key holding:

     The Court’s examination of the use of the term “distribution” in  
other provisions of the Copyright Act, as well as the evolution of  
liability for offers to sell in the analogous Patent Act, lead to the  
conclusion that the plain meaning of the term “distribution” does not  
including making available and, instead, requires actual dissemination.

     . . .

     If simply making a copyrighted work available to the public  
constituted a distribution, even if no member of the public ever  
accessed that work, copyright owners would be able to make an end run  
around the standards for assessing contributor copyright infringement.

In addition, Chief Judge Davis called on Congress to amend the  
Copyright Act:

     The Court would be remiss if it did not take this opportunity to  
implore Congress to amend the Copyright Act to address liability and  
damages in peer-to-peer network cases such as the one currently before  
this Court. . . . While the Court does not discount Plaintiffs’ claim  
that, cumulatively, illegal downloading has far-reaching effects on  
their businesses, the damages awarded in this case are wholly  
disproportionate to the damages suffered by Plaintiffs. Thomas  
allegedly infringed on the copyrights of 24 songs—the equivalent of  
approximately three CDs, costing less than $54, and yet the total  
damages awarded is $222,000—more than five hundred times the cost of  
buying 24 separate CDs and more than four thousand times the cost of  
three CDs. While the Copyright Act was intended to permit statutory  
damages that are larger than the simple cost of the infringed works in  
order to make infringing a far less attractive alternative than  
legitimately purchasing the songs, surely damages that are more than  
one hundred times the cost of the works would serve as a sufficient  
deterrent.

     . . .

     Unfortunately, by using Kazaa, Thomas acted like countless other  
Internet users. Her alleged acts were illegal, but common. Her status  
as a consumer who was not seeking to harm her competitors or make a  
profit does not excuse her behavior. But it does make the award of  
hundreds of thousands of dollars in damages unprecedented and  
oppressive.

EFF applauds Chief Judge Davis's thorough rejection of the RIAA's  
effort to rewrite copyright law and thereby avoid the trouble of  
actually proving any infringement has occurred. And we wholeheartedly  
endorse the court's call to amend the Copyright Act's oppressive  
damages provisions.