“Making Available” as Copyright Infringement–Capitol v. Thomas

By Ethan Ackerman

Capitol v. Thomas has been widely covered (even simul-blogged) as the first RIAA copyright lawsuit against an individual P2P downloader to reach a jury trial. But, to poorly paraphrase Stephen Sondheim, “a funny thing happened on the way to the jury room…” Despite all the trial theatrics and pre-trial preparations and motions, both sides’ counsel and the judge forgot to decide on the relevant law until the last minute.

Jury instructions are statements of law given to juries so they can apply “the law” to the facts they just heard and saw during the trial to come to a decision. The instructions are decided by the judge with the input of both counsel. Since jury instructions are just “legal” issues controlled by a judge, ideally there will be no disagreement over them at trial, as “legal” issues can usually be decided by various pre-trial motions. But in reality, jury instructions are often the focus of continuing disagreements and are fertile grounds for appeal. With marked protests from counsel and last-minute-reversals by the judge, the jury instructions in this case looks to be no exception.

The legal dispute focuses on whether “making available” an electronic file constitutes an infringement of the Copyright Act’s exclusive “distribution” right, independent of any other copying. The Copyright Act prohibits illegal “copying” and illegal “distribution,” but is mostly silent as to what constitutes distribution of an electronic file and whether “making available” a file electronically is enough to infringe that right. Complicating the issue is historythe right was written into the Copyright Act at a time when distribution necessarily did require a transfer or copying of some physical object. This blog has tackled the legal issue before (see here and here and here), and the issue doesn’t look like it’s going away any time soon. The “making available” issue is being similarly litigated in several other P2P infringement cases and has implications for emerging technology products such as satellite radio and remote DVRs. As a result, this case is just the latest addition to an increasingly crowded horserace of pending cases wrestling with the “making available” issue.

10/4 UPDATE: Using the disputed “making available” jury instructions, the Duluth jury returned a verdict in favor of Capitol records and its co-plaintiffs, finding Ms. Thomas infringed the 24 files in dispute. The jury assessed a total of $222,000 in damages. The defendant’s attorney was quoted as saying that amount will increase with the inclusion of plaintiffs’ attorneys’ fees, an amount he stated (contrary to fairly clear and controlling law) “are automatically awarded such judgments under copyright law.” Although no major news coverage I could find has addressed the defendant’s intention to appeal or seek a verdict reversal, an admittedly interested legal blog predicts both will shortly follow.

UPDATE 2 (from Eric): Ethan gets some nice coverage and makes some interesting points in this Internet News article.

UPDATE 3 (from Eric): According to Wired, the jury may have found her guilty even with a different jury instruction because they thought she was a “liar.”

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