Is This The Final Elbow?
By Wes Phillips September 30, 2008 — As we reported almost a year ago, US District Court Judge Michael Davis awarded record labels $220,000 in damages for Jammie Thomas' having posted digital files to the KaZaa peer-to-peer site. To date, that has been the RIAA's sole victory in its prosecution of file sharers and it hinged upon an instruction Judge Davis gave the jury, specifically Jury Instruction 15, which said that Capitol Records did not have to prove anybody downloaded the songs, only that Thomas had posted them. This is known as the "making available" argument and was vigorously opposed by Thomas' lawyer.

Davis was apparently bothered by this and, according to Wired, "without the urging of any of the litigants in the case" summoned all participants back to his courtroom last August and stated in a brief that he "may have made a manifest error of the law." In his declaration of a mistrial last week, Judge Davis specified that " Jury Instruction No. 15 was erroneous, and that error substantially prejudiced Thomas' rights. Based on the court's error in instructing the jury, it grants Thomas a new trial." (Read the 44 page document here.)

Perhaps the most startling part of the document was Judge Davis' closing comments, which began: "The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer‐to‐peer network cases such as the one currently before this Court. The Court begins its analysis by recognizing the unique nature of this case. The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts." Davis argued that other unauthorized distribution cases that resulted in large stautory damages involved corporations or large businesses. Ms. Thomas, Davis wrote, "allegedly infringed on the copyrights of 24 songs— the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000—more than 500 times the cost of buying 24 separate CDs and more than 4,000 times the cost of three CDs."

Will there be another trial? Almost certainly. The RIAA is tenacious and the jury that delivered last October's verdict only deliberated for minutes before finding her guilty—but without the making available bludgeon, that may not be a sure thing.