I recently wrote about Jamie Thomas and the $222,000 judicial penalty against her for placing twenty-four copyrighted recordings on a peer-to-peer network.
As anticipated, Ms. Thomas has appealed the decision and it’s possible she may be granted a new trial.Thomas based her request for a new trial on the grounds that the amount of the jury award is excessive. However,the Minnesota District Court is considering granting a new trial on different grounds - that one of the jury instructions misstated the law. Jury Instruction No. 15 instructed the jury that making copyrighted recordings available for electronic distribution without permission on a peer-to-peer network is infringement - regardless of whether there is actual distribution of those recordings.
Two recent cases are motivating the court to re-think Jury Instruction No. 15. There is an 8th Circuit case, National Car Rental System, Inc. v. Computer Associates Int’l, Inc (8th Cir. 1993) that requires actual distribution before there is infringement. A District of Arizona case on which the music industry relied, Atlantic Recording Corp. v. Howell, has been vacated with the Arizona court now holding that making sound recordings available for distribution is not actionable under the Copyright Act unless there is actual distribution of the recording. Minnesota is in the 8th Circuit so the National Car Rental System case is binding on the Thomas court. The Arizona Atlantic Recording case is not binding.
The music industry’s and Thomas’ briefs arguing whether Jury Instruction No. 15 was in error are due on May 29, 2008, with reply briefs due on June 5, 2008. Oral argument on the issue takes place on July 1, 2008 at 10:00 a.m. in Courtroom 1, in the Federal Courthouse in Duluth, Minnesota. In its order,the Minnesota District Court encouraged interested parties to submit “friend of the court” briefs. Undoubtedly, a number of music and media-related groups will offer their opinion for the court to consider.
