Attorneys Make Cases for, Against New Trial in Music Download Lawsuit
By Patrick Garmoe, Duluth News-Tribune, Minn.
Aug. 5–There’s a good chance that Jammie Thomas, found liable last October in the nation’s first music download trial, will get another chance in court.
That was the upshot of an hour-long hearing Monday in which attorneys for Thomas and the recording and movie industries argued for and against granting her a new trial.
The Brainerd woman was found liable for $222,000 in damages for willfully committing copyright infringement by distributing 24 songs on KaZaA, a peer-to-peer file-sharing network.
Now, U.S. District Judge Michael J. Davis says he’s contemplating granting her a new trial after possibly committing what he says was a “manifest error of law.”
Davis instructed the jury in October that the act of making copyrighted recordings available for 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 had been shown.
After the trial, Davis found a 1993 ruling from the 8th Circuit Court of Appeals that infringement requires proof the item was actually downloaded by a third party.
At issue now is whether precedents in other court cases require that the Recording Industry Association of America prove people downloaded music that Thomas distributed on KaZaA — not just that she made it available for others to download.
“I sent a signal to both sides where I’m headed. Your job is to prove me wrong,” Davis told Donald Verrilli Jr., an attorney for the RIAA.
If the law doesn’t forbid placing copyrighted songs online for others to download, then the law is useless, Verrilli said.
“The right we have is the right to control distribution,” Verrilli said. The law forbids simply putting the music online, he argued, and therefore his client shouldn’t have to prove anyone downloaded anything.
Attorney Robert Alan Garrett, representing the Motion Picture Association of America, argued that agreements approved by Congress with foreign countries define the law as forbidding music from being put online; he said U.S. copyright law shouldn’t deviate from that. Garrett’s client isn’t officially one of the plaintiffs in the case.
Both sides pledged to appeal if they lose when Davis’ ruling comes out by the end of September.
The RIAA has filed more than 26,000 lawsuits against individuals they say have illegally distributed copyrighted music files, just as Thomas did.
Thomas’ was the first of those cases to go to trial, while most of the rest have been settled out of court.
Brian Toder, Thomas’ attorney from Minneapolis, said he and his client represent the future of the music industry, when people can freely share music and the money for music companies is made through other avenues of music production.
“They still have to have an actual transfer,” Toder argued, and because RIAA can’t prove music was actually transferred from Thomas’ online folder to other listeners, she can’t be held liable.
But Verrilli likened it to owning a contract to sell Shell gas exclusively in a certain city. If someone else begins advertising that they also sell Shell gas in the area, isn’t that enough to prove the contract is being broken?
“I don’t need to prove someone’s actually driven up to the pump,” Verrilli said.
PATRICK GARMOE can be reached at (218) 723-5229 or pgarmoe@duluthnews.com
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