by Shana Dines
In our previous article, Copyright: Registration Pt. 2, we mentioned the case of the Recording Industry Association of America (RIAA) suing Jammie Thomas for 24 counts of copyright infringement through the web-based P2P trading network, KaZaA. In October 2007, the jury awarded the five record label plaintiffs (including Capitol and Sony/BMG) statutory damages of $222,000, which is less than 10% of what they were legally entitled to.
Thomas filed an appeal 11 days after the jury verdict was entered on the grounds of excessive damages. Finally, 7 months later, Judge Michael Davis filed an order stating that he was considering granting a new trial not based on excessive damages, but based on a possible "manifest error of law." The hearing over this matter was held yesterday, August 4, 2008. Although a decision will not be entered for another month, many commentators are expecting Judge Davis to declare it a mistrial.
If Thomas' case does get retried, the RIAA plans to use evidence of songs actually being downloaded from her shared KaZaA folder by their hired investigators. RIAA investigators have been downloading songs from various users in hopes of securing evidence for future lawsuits.
However, Thomas' defense attorney has pointed out that the Copyright Act only makes unauthorized distribution of copyrighted material illegal. If the investigators are hired by the RIAA and downloading the songs with permission, he claims it is not technically an unauthorized distribution and, therefore, not illegal.
"Manifest Error of Law"?
In Judge Davis's original order, he stated that he was contemplating granting a new trial based on a possible error in Jury Instruction No. 15. Based on suggestions by the plaintiffs' counsel, the instruction stated that the act of making copyrighted material available for electronic distribution, regardless of whether actual distribution has been shown, constitutes an infringement.
The judge's main concern was that this instruction may be contrary to precedent from the Eighth Circuit Court of Appeals, which is binding in this case. A copyright case from 1993, National Car Rental System, Inc. v. Computer Associates Int'l, Inc. held that infringement of the distribution right "requires an actual dissemination of either copies or phonorecords."
This is further supported by a recent, closely related case by the RIAA against Jeffery Howell, where the court denied a motion for summary judgment by the plaintiffs citing the same precedent, as well as numerous other copyright cases. The judge there held, "Unless a copy of the work changes hands in one of the designated ways, a distribution under [the Copyright Act] has not taken place."
Another victory over the RIAA by another defendant Joan Cassin came just after these decisions.
Cassin's attorney had been updating the judge in this case every time a decision was passed in related cases, most recently sending copies of the Howell and Thomas decisions. After his last letter, dated May 15, 2008, the RIAA reportedly "quietly dropped" the suit against Cassin, which had been going on for over 2 years.
While the RIAA gave no explanation for this action, Cassin's attorney believed it was related to the contention that to constitute infringement, the copyrighted material must have been actually disseminated, and not merely made available.
Judge Davis requested amicus briefs from interested parties, which are persuasive arguments for or against a particular motion. Amicus briefs are typically submitted by non-profits, professional organizations, or lobbyists.
On June 20, Judge Davis received numerous briefs, including one from the Motion Picture Association of America (MPAA) opposing a new trial. Another brief, supporting a new trial, came jointly from the Electronic Frontier Foundation (EFF), Public Knowledge, United States Internet Industry Association, and Computer & Communications Industry Association.
Argument Against a New Trial
The crux of the MPAA's argument is that the U.S. is a party to various international copyright treaties that include the right to make a work available as one of the exclusive rights of copyright holders. Therefore, domestic policy should not conflict with international obligations.
The MPAA also argues that legislative history has assured the international community that the U.S. Copyright Act encompasses the right to make copyrighted material available in its protected rights of copyright holders.
The MPAA's brief included a criticism of the court for taking a single sentence out of context of the National Car Rental case, in which the facts bear little resemblance to the present case. The court there held that infringement of the distribution right "requires an actual dissemination of either copies or phonorecords."
The brief then cites various other cases that rejected National Car Rental's reasoning, including Hotaling v. Church of Jesus Christ of Latter-Day Saints, the most commonly cited case to support the "make available" theory of copyright infringement.
Argument For a New Trial
Arguing against the "make available" theory, the EFF makes a more strict interpretation of the language of the Copyright Act, as well as a consideration of the public policy of the future of copyright law.
The EFF's brief explains that the exact language of the exclusive rights of copyright holders includes the right to "distribute copies … by sale or other transfer of ownership, or by rental, lease, or lending." This line from the Copyright Act, 17 U.S.C. § 106(3), has been expanded to equate actual distribution with making a copyrighted work available for distribution.
The brief argues that if Congress had intended to include potential distribution, they would have done so explicitly. Because they did not, potential distribution should not count as infringement.
The EFF's brief cites National Car Rental and other related cases that hold actual dissemination is required for copyright infringement. The brief also criticizes the reasoning of certain courts that publication and distribution are synonymous terms in the Copyright Act, such as in the recently decided Elektra Entertainment v. Barker.
Considering the far-reaching effects of the "make available" theory, the brief argues that the line between public performance rights and distribution rights could be blurred for digital radio broadcasters. Additionally, it could transform secondary liability of search engines into direct infringement for showing users where copyrighted material is located, but not actually accessing it.
Check back with MELON for future updates on the many copyright infringement lawsuits filed by the RIAA.