Judge halts recording industry award

Illegal downloading case gets new trial

Citing his own “erroneous” deliberation instructions to the jury, a judge halted a $222,000 award to the recording industry in an illegal downloading case and called for a new trial.

The action could dramatically raise the bar for music industry prosecution of alleged illegal downloaders.

The case, Capital v. Thomas, involved the first illegal file-sharing trial; it concluded last fall in the conviction of a Minnesota woman who had “offered to share” 24 copyrighted songs via the peer-to-peer software Kazaa, according to the charges.

When instructing the jury prior to deliberation, Judge Michael Davis told the jury that actual distribution of the songs did not have to take place for defendant Jammie Thomas to be guilty of copyright infringement. The fact that Thomas had simply made the songs available through a file-sharing program was enough to convict.

But after reviewing Thomas’ motion for a new trial, Davis decided he had been wrong about the threshold for guilt. In his ruling issued Wednesday, Davis said that actual distribution must be proved by the plaintiffs.

“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,” Davis said in his decision.

By granting a new trial, Davis did not formally invalidate the $222,000 award — which he characterized as “wholly disproportionate” and “unprecedented and oppressive” — but it is effectively neutralized since he did invalidate the trial that led to it. If the jury in the new trial again convicts Thomas, the award could be reinstated.

But Davis also included an extraordinary commentary as well as plea in his decision.

“The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit,” he wrote. “Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The court does not condone Thomas’ actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.

“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,” Davis continued. The defendant “The court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts. The myriad of copyright cases cited by plaintiffs and the government, in which courts upheld large statutory damages awards far above the minimum, have limited relevance in this case.”

Recording Industry Assn. of America spokesman Jonathan Lamy responded:

“This decision was not unexpected given the court’s previous comments. Regardless of this narrow issue, a jury of her own peers unanimously found Ms. Thomas liable for copyright theft and for causing significant harm to the music community. We have confidence in our case and the facts assembled against the defendant. As with all our illegal downloading cases, we have evidence of actual distribution — an assertion this court and others nationwide have made clear constitutes infringement. We are determining whether to directly appeal this decision or move forward with a retrial and will make an appropriate decision soon.”

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