Duluth, Minnesota became the unlikely epicenter of the file-sharing world again yesterday as the Jammie Thomas retrial hearing was convened by Judge Michael Davis. After wading through the flurry of briefs filed by "friends of the court" on both sides of the case, Davis had the chance to hear firsthand from the lawyers for Thomas and the RIAA on the question of whether Thomas, who was in labor as the hearing happened, deserved a brand new trial. Reporters at the scene indicated that the judge was leaning toward granting Thomas' request, putting one of the RIAA's most important court room victories in jeopardy.
That's not how the recording industry sees it, of course. Cara Duckworth, the RIAA's communications director, pointed out to Ars that her group has a solid case against Thomas. One of the reasons for Judge Davis' hearing was his own doubts about whether "making available" a file for distribution by placing it in a shared folder was truly copyright infringement, or whether a rightsholder had to show that people had actually made a copy of that file through downloading.
But Duckworth says that the RIAA actually has this evidence, too, and that whatever Davis decides on the making available question should not impact the case's overall outcome (which, if you've been scoring at home, was a $222,000 verdict against Thomas based on the infringement of 24 copyrighted songs).
The Federal Courthouse in Duluth
"The record companies have already proven that numerous copyrighted sound recordings in Ms. Thomas’ Kazaa 'share folder' were actually transferred (not just ‘made available’) to the computers of the record companies’ investigators," Duckworth said. "This is true not only in Ms. Thomas’ case, but the record companies have such downloads in every one of our cases against individual infringers."
RIAA investigators have for some time been downloading tracks from possible infringers, giving them something to fall back on if courts reject the idea that simply showing a list of files in a shared folder makes a person an infringer.
But Thomas' attorney, Brian Toder, is mounting a two-part argument that we've heard before:
- "Making available" isn't infringement unless you can show downloads took placeDownloads to RIAA investigators don't count
Toder claims that the law only bars unauthorized distributions, that the investigators were "authorized" by the RIAA to download files, and (ergo) that such downloads aren't evidence of infringement. If successful, such a two-part defense would eviscerate the RIAA's entire current legal campaign, though the labels could probably still pursue people based on other rights besides the "distribution" right under copyright law.
According to both the Duluth News-Tribune and Wired, the judge seemed to lean in favor of a mistrial, which would start the Thomas case over once again. According to the News-Tribune, Judge Davis told the RIAA's attorney, "I sent a signal to both sides where I'm headed. Your job is to prove me wrong." We won't know if the RIAA was successful for another month or so, when the judge's ruling will appear.