'Making available' theory takes center stage in RIAA v. Thomas

After the judge in the Jammie Thomas trial admits he may have made some serious mistakes, the organization helping to defend her in court is now seeking a retrial.

A hearing on the subject is scheduled for August, where the two sides will argue for and against throwing out the October verdict that found Thomas guilty and fined her $220,000.

The whole idea of the 'making available' defense is this: A defendant in an illicit file-sharing case is essentially found guilty of infringement by just making the files available for download. Oftentimes, there is no evidence that actual downloading by other users occurred.

That concept has drawn heavy criticism. Earlier this month, the Recording Industry Association of America backed away from its case against Joan Cassin, a New York resident who was sued after MediaSentry discovered she was sharing 406 copyright-protected files over the Kazaa network.

No evidence of actual downloading by other Kazaa users was apparently offered. This followed an April ruling by an Arizona district court judge, reversing his own previous ruling and claiming that evidence of actual dissemination was necessary in order to convict a defendant on infringement charges.

With this case history, lawyers for the Electronic Frontier Foundation seem to have been buoyed by these developments, using the same general argument in a brief filed with a Minnesota District Court on Friday.

The EFF argues that the Copyright Act does not permit a suit on the basis of attempted copyright infringement alone. Instead, the onus is on the plaintiff to produce evidence that piracy actually occurred.

Judge Michael Davis actually began the effort to consider a new trial himself, saying in May that he may have made what he termed as a "manual error of law" in instructing the jury on how to decide the case.

While his original instructions told the jury that merely making files available did not constitute infringement, RIAA lawyers argued the opposite. Davis acquiesced and changed that part of the draft.

"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," EFF attorney Corynne McSherry said.

The entertainment industry disagrees. The MPAA filed a brief in support of the RIAA, arguing that the jury instruction should stand as it was edited, and said a change could hurt the industry's attempts to curb piracy.

"Mandating [proof of transfer] could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement," the MPAA brief reads. "MPAA urges the court to oppose any requirement of actual distribution because the Copyright Act imposes no such requirement."

Thomas Sydnor of the Progress and Freedom Foundation seemed to support that argument in a separate brief, arguing further that the Copyright Act was intended to be flexible and technology-neutral, as its writers couldn't have possibly imagined the new ways of distribution that now exist, and courts and copyright holders must adapt to.

Either way, it now appears that the chances of Thomas getting a new trial, which she first requested in October of last year, may be increasing.

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