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New hope for accused file-sharer

Chasing_pirates The judge in Capitol v. Thomas -- the first of the RIAA's lawsuits against individual file-sharers to go to trial, it resulted  in a $222,000 judgment against a single mother in Minnesota -- threw the verdict into doubt today. Defendant Jammie Thomas had moved for a new trial on the grounds that the award was excessive and unconstitutional. In response, U.S. District Judge Michael J. Davis issued an order calling for a hearing on a different issue: whether he erred in instructing the jury that simply making a song available for others to download violated copyrights. He gave that instruction at the request of the labels' attorney, Richard Gabriel, who has since left the case to take a seat on the Colorado Court of Appeals.

Davis wrote that the instruction may have run counter to a 1993 ruling by the appellate court for his district, the Eighth Circuit Court of Appeals, which "appears to require that actual dissemination occur in order to infringe the distribution right under the Copyright Act." (Davis added, "Neither party presented this Eighth Circuit case to the Court," which is a not-so-subtle admonition against bad lawyering.) He also cited the recent decision by a District Court judge in Arizona to reverse himself and hold that making available doesn't amount to infringing. Clearly, the momentum on that issue has turned, complicating the RIAA's campaign against file-sharing piracy in intriguing ways.

Whether this actually helps Thomas is another question. The RIAA appeared to have a strong circumstantial case against her, and the jury didn't buy her testimony. It may be a relatively simple matter for the RIAA to show that the files in question were, in fact, distributed -- to its own contractor, MediaSentry. Of course, there's some argument that distributions to an RIAA contractor can't be considered infringing....

Thanks to Recording Industry vs. The People for calling my attention to the ruling.

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Times editorial writer Jon Healey pens opinion pieces about a variety of business issues, and blogs about technologies that are changing the entertainment industry's business model.

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