Electronic Frontier Foundation To Support Thomas In RIAA Appeal
The Electronic Frontier Foundation (EFF) has publicly sided with Jammie Thomas, the single mother from Minnesota who lost a jury verdict against the RIAA for copyright infringement. Thomas, who received almost a quarter of a million dollars in fines for making a few dozen songs available for download on a Peer-To-Peer (P2P) file sharing service, has stated that she will appeal the verdict. The EFF’s involvement is certainly good news to Thomas, who was obviously guilty according to jurors interviewed after the trial. Now her financial future may rest on a technicality.
The EFF has a new strategy that hinges on challenging a jury instruction that associates making tracks available on P2P networks with active distribution. Here’s what the Jury was told:
Jury Instruction #15: The act of making copyrighted sound recordings available for electronic 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 has been shown.
According to the EFF, there are two distinct things wrong with this instruction…
First, the “distribution right” set out in Section 106(3) of the Copyright Act simply does not extend to Internet transmissions. It may sound odd, but “distribution” as defined in the Copyright Act requires that a physical object change hands (remember, this is a law that was written in 1976). EFF laid out this argument in its amicus brief in the Elektra v. Barker case, building on a 2001 article by University of Texas copyright law professor R. Anthony Reese.
Second, even if the “distribution right” reached Internet transmissions, a copyright owner must prove that a distribution actually took place (i.e., that someone actually downloaded from Ms. Thomas’ computer). As a result, Jury Instruction #15 is wrong when it asserts that the record companies can prevail “regardless of whether actual distribution has been shown.” For more on this issue, read the amicus brief filed by CCIA in Elektra v. Barker, as well as the 2005 ruling by Judge Patel in the Napster case.
If 8th US Circuit Court of Appeals rejects that jury instruction, the verdict against Jammie Thomas will have to be tossed and the case re-tried, if the RIAA is willing to get back into the ring.