EFF Files Amicus Brief on Jammie Thomas Trial, Demands Re-Trial

Can you really sue for attempted copyright infringement? The EFF doesn’t think so and has filed an amicus brief arguing that the major record labels must prove infringement actually took place before claiming copyright infringement.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In some circles, she’s guilty. In other circles, she’s innocent. The one thing both sides might agree on is that the the Jammie Thomas trial is a landmark trial in US file-sharing history. Earlier today, we reported that 10 law professors suggest that the ‘making available’ theory is not copyright infringement.

At issue is whether or not putting a supposed copyrighted song into a shared directory is copyright infringement. The idea of attempted copyright infringement isn’t new considering the INDUCE act brought up this kind of question back in 2004 which, according to Wikipedia, “targets “whoever intentionally induces any violation” of copyright” While the legislation is dead, the idea of ‘attempted copyright infringement’ lives on to this day, making it’s appearance in court during the Jammie Thomas trial through what is known as the ‘making available theory’.

As mentioned, 10 law professors have already told the courts the following:

The plain language of the statutory text, as confirmed by other courts and leading commentators, compels but one conclusion: that merely making a work available to the public, whether over the internet or otherwise, by itself does not constitute a distribution. More precisely, because a defendant ‘distributes’ in violation of § 106(3) only when she actually transfers to the public the possession or ownership of copies or phonorecords of a work, no distribution is effected merely by making a work available for distribution on a peer-to-peer network.

Now, the EFF has filed its own amicus brief. In a press release, the EFF says that it is demanding a retrial because of potential consequences of the current ruling.

“The Copyright Act simply does not allow suing someone for attempted copyright infringement,” said EFF Staff Attorney Corynne McSherry. “If the RIAA wants to continue with its mass litigation campaign, it’s going to have to invest the time and resources to actually prove those cases — if it can — by showing that infringement actually occurred.”

“The RIAA’s specious ‘making available’ argument threatens to brand people as thieves when the evidence isn’t really there,” said EFF Senior Intellectual Property Attorney Michael Kwun. “We’re pleased the judge is taking a second look at this critical question.”

Currently, the judge in the trial is re-considering the judgement put on Jammie Thomas where the guilty verdict landed Thomas in a $222,000 fine.

Here’s a highlight of the amicus brief from the EFF:

Ms. Thomas, like more than 20,000 other individuals, was sued by Plaintiffs for copyright infringement based on her use of peer-to-peer (“P2P”) file sharing software. The jury was instructed that:
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.

This instruction was erroneous as a matter of law. The plain language of the Copyright Act and applicable precedents mandate that an infringement of the distribution right requires the unauthorized, actual dissemination of copies of a copyrighted work—a completed act of transfer. To permit a finding of distribution liability based on anything less would be to transform section 106(3) into an unbounded form of civil attempt liability, even where no copies had ever been distributed and thus no harm had ever been inflicted on the copyright owner.

More than just Ms. Thomas’ liability is at stake. Acceptance of the “making available” theory could disrupt copyright law in a variety of other contexts. As will be discussed further below, several Plaintiffs sued a national radio broadcaster, XM Radio, based on a variant of the “making available” theory that they advance here. See Atlantic Recording Corp. v. XM Satellite Radio, No. 1:06-cv-03733-DAB (S.D.N.Y. filed May 16, 2006). Copyright owners have also pressed this theory against Google, contending that the Internet search engine runs afoul of an expansive “making available” conception of the distribution right. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). And the Recording Industry Association of America has sent thousands of DMCA notices to colleges and universities based solely on evidence that students have made songs available for possible download by others. See Ted Bridis, AP: Music Companies Targeting Colleges, S.F. CHRONICLE (Feb. 21, 2007). As a result of these notices, students can suffer a range of consequences, including fines and permanent loss of access to their school networks.

Whether or not this will change the outcome of this particular trial is up to debate, but the important thing is some of the precedents that this case is setting – particularly in light of other judgments that strike down the idea of the making available theory.

Drew Wilson on Twitter: @icecube85 and Google+.

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