Judge in Capitol v. Thomas Considers New Trial

Jay Maynard writes "The judge in Capitol Records v. Thomas said today he's thinking about granting a new trial because he may have committed a 'manifest error of law' in his jury instructions. He says that his instruction that simply uploading music to a P2P network without any proof that anyone actually downloaded it may conflict with a case in the Eighth Circuit Court of Appeals that said 'infringement of [the distribution right] requires an actual dissemination.' Briefs are due by May 29, with oral argument July 1. The judge invited friend of the court briefs by May 29, as well." NewYorkCountryLawyer links to the Judge's order itself (PDF), in which the Judge notes that he may (in NYCL's words) "have overlooked controlling Eighth Circuit authority, the case of National Car Rental v. Computer Associates, which held that you can't have a violation of the 'distribution right' without an 'actual dissemination of copies or phonorecords.'" Update: 05/15 18:54 GMT by T : Note that while the linked story as well as Jay Maynard's summary use the term "upload," Thomas wasn't uploading the files themselves, only making them available.

Comments

Car analogy

[InvisblePinkUnicorn]

Your ipod touch is plugged into your car's audio port, and simultaneously is connected wirelessly to your network, where it remains in sync with your server's music share. The server also happens to be running a p2p program where your music is also being shared. However, all you listen to Kimya Dawson, so nobody has downloaded anything yet. It's simply sitting there, shared, but not acquired. So the judge is going to agree with a previous decision saying that infringement of [the distribution right] requires an actual dissemination.

And once again a car analogy comes along to save the day.

Re:Which takes guts

[NewYorkCountryLawyer]

It's not just democracy, but this judge deserve real kudos for having the backbone to admit his error. Too often we here of those in power who realize they have made a mistake, and cover it up in lies or denial (often making worse mistakes in the process). Rather than just referring to him as "the judge in Capitol V Thomas", his name is "Judge Michael Davis." If anyone happens to know him, I'd say that it's about time to congratulate him for being man enough to step up and make this admission. At the risk of being modded down for "Redundancy"......

yep.

Re:Huh?

[cpt kangarooski]

Well there are at least 2 types of downloading. One that results in a copy being made. And one that is ephemeral, in RAM only, and which does not result in any copy being made. The latter type would not, in view, implicate the reproduction right.

Oh, come now, Ray. I expect better from you.

The 9th Cir., in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993) was pretty clear:

The district court's grant of summary judgment on MAI's claims of copyright infringement reflects its conclusion that a "copying" for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer's RAM. This conclusion is consistent with its finding, in granting the preliminary injunction, that: "the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law. ...

Peak argues that this loading of copyrighted software does not constitute a copyright violation because the "copy" created in RAM is not "fixed." However, by showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."

And MAI is a widely influential precedent. I don't recall having heard of any cases that looked at the same issue and came out otherwise. As I don't much care for computer users needing to rely on fair use for virtually everything (see, e.g. Intellectual Reserve v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999) finding that viewing a web page, if making a copy in RAM as a necessary step in order to do so, can be infringing), I'd certainly like to see an on point case that disagreed with the MAI court.

Re:Huh?

[cpt kangarooski]

Well I do not think viewing something, as opposed to making a fixed copy of something, implicates the reproduction right.

That's the problem, basically. Computers are designed in such a way that it is basically impossible for them to do anything without making at least one copy in the process. Nothing can appear onscreen, or be heard through the speakers, or be transferred, or otherwise acted upon, without some kind of copying. It's just how computers work at a very low level.

MAI says that that's enough to potentially be infringing. The copyright parts of MAI are pretty short and easy to get through. Given how foundational it is for any kind of copyright case involving computers, and how influential it's been, it's worth a quick read. The Intellectual Reserve case I mentioned earlier is from D. Utah, but it's the logical outgrowth of MAI, and also is very easy to get through.

Others have identified a possible effect of MAI that's very disturbing. Let us say that Alice has an infringing mp3, which she listens to many times a day for several months. Each time she opens the file in order to listen to it on the computer, the computer reads the data from the hard drive, then copies it into the RAM (and possibly other places, depending on the precise architecture of the computer and what the OS is doing) to facilitate this. After she's done listening, the data is likely erased from RAM, etc., to make room for other data. If we treat each incident of copying the data into RAM as a separate infringement, then it is been suggested that it might be a criminal infringement per section 506(1)(B); Each listening could contribute toward the $1000 retail value total needed to trigger criminal liability.

Again, I'd say that you should look at MAI and cases built on MAI when you have a chance.