The major record companies made their written case today (download the .pdf here) against a new trial for Jammie Thomas, the single mom ordered by a Minnesota jury to pay $222,000 for infringing the copyrights on 24 songs through Kazaa. The main legal arguments include:
- Thomas downloaded many of the songs in her shared folder from other Kazaa users despite being away that such copying was illegal. Thus, she willfully she violated copyrights even before she made the songs available for others to copy;
- The RIAA's contractor, MediaSentry, downloaded "numerous" songs in Thomas' shared folder, providing evidence of actual distributions. Bill Patry's arguments to the contrary, the fact that the downloads were by the labels' contractor doesn't make them authorized.
- Federal law equates "distributing" with "making copies available for others to take," regardless of whether there is an actual distribution.
- The cases cited by those seeking a new trial aren't relevant or misinterpret the law.
- The U.S. is obligated under international treaties for the protection of intellectual property to equate "making available" with "distributing."
These are contentions, mind you, and Thomas' lawyers have their own brief.
In it, they make the following arguments:
- Although courts have not ruled consistently on the issue, the strongest precedents require that a copyright holder's distribution right is not violated unless there is an actual distribution.
- The only party proven to have copied from Thomas' shared folder is the labels' contractor, and that doesn't amount to an infringement.
- The main international copyright treaty may include a "making available" right, but that doesn't mean U.S. copyright law does.
- The only way to correct the erroneous instruction is to grant Thomas a new trial, because jurors were not asked whether they found her liable for unauthorized downloading, making songs available, or both.
Neither side seemed to raise new issues, but there was one twist I hadn't seen before. The RIAA brief cited a District Court ruling, Walt Disney Co. v. Video 47, that found a video rental store violated a studio's distribution rights merely by putting bootlegged films on its shelves. Just as the store did everything it could to distribute the films, the brief contends, so did Thomas:
Here, defendant did not just "offer" to provide copyrighted works to others; she took every action necessary so that others could simply take them, at their leisure, within a KaZaA system designed to hide any trace of who is copying what. Copyright liability should not depend on whether the owner has hidden the receipt.
The brief also argues that it would be bad policy to require copyright owners to prove actual distributions, not merely that a file sharer had made a title available. In essence, the RIAA's lawyers argue that it would be too hard to catch people in the act of copying. "Because the transfer of files occurs in a direct connection between the distributor's computer and the recipient's, there is currently no way to capture the transfer as it happens. Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online -- and would solely benefit those who seek to freeload off Plaintiffs' investment." Such an argument might apply to second-generation file-sharing networks such as Kazaa, but not the subsequent generation (BitTorrent, eMule) that distribute files through swarms of uploaders.