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

Huh?

[EMeta]

Sorry, I got lost in the legalese there. Someone want to help?

Re:Huh?

[kellyb9]

It sounds like they are saying simply uploading music to a P2P network is not illegal until someone downloads it.

Re:Huh?

[Mr. Beatdown]

The judge is saying that he may have made an error in his instructions to the jury. He told them that making available = distribution. The 8th circuit court had already ruled that distribution is required for infringement, and there is a growing consensus that making available does not equal distribution.

Basically, they might have to do it all over again, because the judge told the jury the wrong test to apply to determine if she broke the law.

Re:Huh?

[kennygraham]

When GP said "uploading" he meant "making available for download". Stop being a pedantic retard.

Re:Huh?

[mea37]

Well, don't expect the terminology to always be technically correct.

Basically we're looking at a rematch in the "making available" debate. The original verdict nailed the defendant to the wall for making tracks available for download. Now the judge is thinking that was based on incorrect instructions he gave the jury about how to understand the law.

For "upload to a p2p network", substitute "place on a shared drive readable/searchable/indexed by a p2p network".

I remain on the fence on this one. I don't believe that literally "just making available" should be illegal; I also don't believe that putting the track on a p2p share is "just making available" because of the implicit advertising of availability. I understand the argument that you can't have distributed if nobody downloaded, but I find it hard to believe that my liability should depend so absolutely on the actions of others.

Re:Huh?

[NewYorkCountryLawyer]

The judge is saying that he may have made an error in his instructions to the jury. He told them that making available = distribution. The 8th circuit court had already ruled that distribution is required for infringement, and there is a growing consensus that making available does not equal distribution. Basically, they might have to do it all over again, because the judge told the jury the wrong test to apply to determine if she broke the law. Everything you said is correct.

I would add that:

the judge didn't just make an error. He made the error because Ms. Thomas's lawyer, who should have told the judge about the National Car Rental case, didn't, and because the RIAA's lawyers -- who had an obligation under the Code of Professional Responsibility to inform the judge about the National Car Rental case -- also didn't.

So I expect one angry judge on July 1st.

Interestingly the chief architect of the RIAA's legal behavior won't be able to be there July 1st, as that's the day he starts his new job as a state court judge in Colorado. So one of his clones will have to take the heat for this misconduct.

Re:Huh?

[BobMcD]

If you make a poison that is never actually imbibed, was it still wrong to make the poison?

Consequently, if you make a poison and children find and drink it, is making the poison now somehow worse?

Food for thought...

Re:Huh?

[Ungrounded Lightning]

In particular:

  - Offering it to be downloaded may not be "nice" but no laws are broken until somebody actually DOES download it. So said the 8th Circuit Court of Appeals - the appellate court above the one where this trial was held. This court within the 8th Circuit and must follow the decisions of law made above it. (The 8th Circuit, and the Supreme Court above that, are its "controlling authorities".)

  - Unfortunately, neither the defendant nor the RIAA mentioned this to the judge and he didn't think of it himself. So he told the jury that (as the RIAA claims), "making available" is a crime. OOPS! The jury then convicted and asked for a BIG punishment.

  - Since then he noticed (probably got a lot of letters about) the ruling. So when the defendant's attorneys filed a complaint that the punishment was too big and asking for the judge to reduce it, the judge said: "I goofed. Sorry. (But nobody mentioned this ruling from my boss court during the trial. Tisk, tisk.) And the law lets me fix that by ordering a new trial (where I'll be careful not to make this goof again). And the law lets me tell you that when I'm answering you about this other issue (which will just go away if we hold another trial.) So both sides send me your written thoughts about this by June 5 and we'll all get together and talk about it on July 1. Then I'll decide what to do. (Hint: If the defendant asks and the plaintiffs don't have a good argument why not, I'll order a new trial."

  - The RIAA's methodology only shows that the content is available on the server, not that anybody downloaded it. So once there's a new trial they'll have to come up with evidence they didn't present at this one. (I think the judge might ask them if they have such evidence and give them an opportunity to just go away and let the defendant off if they don't, rather than scheduling another trial they can't win.)

Re:Huh?

[m0nkyman]

If you put poisoned candy on your front porch, you don't get charged with negligent homicide unless a kid eats it. The actions of others do affect your liability.

Re:Huh?

[Chosen Reject]

I find it hard to believe that my liability should depend so absolutely on the actions of others.

But in this case, no crime has occurred unless and until someone downloads. Why should you be held liable for copyright infringement if you never distributed a copyrighted work? Until someone downloads the copyrighted work, you haven't distributed it, thus no infringement has occurred.

This is one of those times where someone else has to do something in order for what you do to be considered a crime.

I also don't believe that putting the track on a p2p share is "just making available" because of the implicit advertising of availability.

But advertising availability isn't copyright infringement. You infringe when you distribute. So if no one has downloaded, you haven't distributed, thus you haven't infringed copyright. It's a very dangerous thing to start saying that intent is enough to convict a person of a crime. Intent ought to be considered when a crime has occurred, but to outlaw intent itself sets very bad precedent.

Re:Huh?

[Corf]

Little punks should've stayed off my damn lawn. That'll larn 'em.

Re:Huh?

[Anonymous Coward]

If you make a poison that is never actually imbibed, was it still wrong to make the poison? Consequently, if you make a poison and children find and drink it, is making the poison now somehow worse?

Can't one just substitute "poison" with "guns", to which it's obvious that making a dangerous weapon != using dangerous weapon on technical terms.

All this "wrong" or "worse" talk is about feelings, of which should not be involved in facts. Just because you "feel" it's wrong to make poison does not mean it *is* wrong to make poison (unless there is literally a law that says it's illegal to make poison). The same can be said about violent video games. Maybe you feel it's wrong to play a video game who's main character "wins" by raping and murdering others, doesn't mean it *is* wrong to play said type of game. That's were morals and laws divide.

That's where this legal debate keeps circling. There hasn't been any direct laws covering publicly accessible digital files. Is it "illegal" to simply place your digital files in a public folder? I dunno. I don't see how that in anyway harms people or others. That's be like saying it should be illegal to (for a car analogy) park your car on a public street (assuming there's no "no parking" signs).

However, it should be "illegal" to "take" (copy) said files, the same it would be illegal to take someone's car who's parked it on the public street. And that's the point I think people are trying to make. The RIAA are suing those who simply put their files in the public space instead of going after those who "take" said files via copying. (there's a whole other side of the case of the validity of making copies of things given that taking a person's car is illegal because it deprives said person of said car, but making a digital copy does not deprive said person of their property) They obviously do so, because they're trying to claim that those who "make available" (putting files in a public space) are directly trying to harm the RIAA's stakeholders. It gets even messier because most P2P "sharers" are doing so at no profit what-so-ever. Unlike people who might make hard copies of, say, a Harry Potter book, and try to resell them at a much cheaper price to make a profit are clearly profiting off the work of others. File shares are not profiting in anyway... in fact, one could argue it's *costing* them money to do so (because it takes up their bandwidth, which they pay for, though a weak argument given the negligible cost). So why would people pay others to "take" (copies) of their stuff?

Yet, the laws aren't that simple. Pirating music, movies, software and other digital files is a *real* threat to those who spend their time and money to produce such things. It'll kill a lot of businesses if it's determined that it's completely legal to share digital copies of things. Obviously, we can't have that (though I often wonder if we can, given a different business model like RadioHead, NIN, donations and Software as a Service that many FOSS projects use)

The RIAA go after sharers because it's a lot easier and a lot more static. But then again, lets add another "food for thought"... under "fair use", it's completely fair to sample small parts of something. Given the technology of P2P like torrents, where only small parts of a whole are taken from any one person, can it not be said that each sharer are well within their rights to give a single person small samples of copy righted material as long as it's not the whole product?

Re:Huh?

[NewYorkCountryLawyer]

So its the lawyer's fault that the judge didn't know about that particular case? Yes. We are in an adversary system. No lawyer and no judge knows all of the law. It's far too vast. Judges rely upon the lawyers to do their homework, to hone in on the issues that are involved in any particular case, and to focus the judge on what is relevant. Which is why it was so important for Ms. Thomas's lawyer to to represent his client "zealously". And why an opposing lawyer is REQUIRED BY LAW to disclose to the judge "controlling contrary authority". (No lawyer likes to do that last thing.... disclose controlling contrary authority... but it is an important and a binding rule which was designed to avoid just the type of embarrassment that has been caused here.)

Re:Huh?

[Chosen Reject]

All this "wrong" or "worse" talk is about feelings, of which should not be involved in facts.

Yes, let's keep it to facts.

What is copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

From this we can infer that there are 5 ways to infringe copyright
1. Reproduce - This one is long, see next paragraph.
2. Distribute - downloading is not distributing.
3. Performed - downloading is not performing.
4. Publicly display - downloading is not a public display.
5. Make into a derivative work - downloading is not making a derivative work.

So the only possibility is reproduction. To my knowledge, no law or court case has addressed this specifically so all we have is conjecture. It could be argued that the downloader made a copy. What I think would really be the case is that the downloader requested a copy, but it was the uploader who actually made the copy from his hard drive to his network card. The reason I make the distinction is precisely because copies for copyrighted works are made all the time on a single machine. When I play the Flobot's "Handlebars" a copy goes from my hard drive to memory and at some point has to go through the CPU. So we can't obviously count every single time a copy is made. If we did, then every router that it went through would be held liable for making a copy. So the downloader requests a copy, then the uploader makes a copy, and that is where copyright infringement has occurred.

It's kind of like a guy on the street with a DVD burner and a list of movies he has. He can advertise it all he wants without committing copyright infringement. Then someone comes up to him and asks for one of his movies. He puts a blank disk in the burner, burns the requested movie onto it, and then passes the disk to the requester. The guy on the street committed copyright infringement at the point that he burned the movie onto the disk (reproduced) and handed it to the requester (distributed), but at no point did the requester commit copyright infringement. In the same way, the downloader did not commit copyright infringement.

Re:Huh?

[immcintosh]

There is (Westlaw too). The problem is what to search for, considering the complexity of trials. Also, electronic filing is available in most jurisdictions these days, but is not mandatory, nor should it be. Really, this just looks like a case of the defense not doing their homework and the prosecution being dishonest.

Re:Huh?

[PhilipPeake]

Unfortunately, that precedent already exists. If you have the components available to create a short barreled rifle, which requires the payment of a $200 tax, the BATFE can (and will) prosecute you for "constructive intent".

In other words, you possess a collection of components which are all individually legal to possess, but .gov can argue that because it is possible to construct something illegal, you intend to do so, and therefore you are guilty of a felony (not paying the $200 tax).

You don't have to express any intent to do so, you don't have to assemble anything. Just being in a position to do so makes you a criminal.

Re:Huh?

[Sloppy]

Stop being a pedantic retard.

But I thought we were talking about laws.

Re:Huh?

[Sloppy]

No lawyer and no judge knows all of the law. It's far too vast.

And yet citizens, who have even less expertise in law than lawyers and judges, are expected to obey the law and can be punished for not doing so.

What do you call a legislator at the bottom of the ocean? A good start!

Re:Huh?

[lucas_picador]

The next logical extension if this case is allowed to stand is that you can be prosecuted for putting down a book you are reading in a public place and not taking adequate care to secure it.

Right. I don't see how such an act fails to meet the criteria for "making available".

William Patry (copyright expert and Google general copyright counsel) has a very nice post about the "making available" precedent here.

Re:Huh?

[hedwards]

Doesn't matter, mediasentry has authorization from the RIAA labels to download the files in certain instances. Additionally, they admitted in a recent article that they don't know when/if anybody has downloaded the files ever. Ignoring that they don't have a license to conduct investigations in most states anyways.

Just because I don't have the authorization to offer a song for download, doesn't mean that the person downloading it doesn't have permission to download it. And for the purposes of copyright infringement, the fact that the other party had permission would limit my liability to making available. Since no unauthorized copy was created. And likewise if you reverse the situation if I have permission to allow the uploads, and the person on the other end doesn't have the authority to download, it's still a non-starter.

Which is where the arguments get difficult to prove, in order to prove it's case the RIAA has to demonstrate that somebody who wasn't authorized to download the materials did so. And that furthermore the downloads were offered on purpose rather than by accident.

It would not be valid to claim that I've engaged in copyright infringement if somebody broke into my computer via a rootkit and placed things into a p2p share without my permission. Nor would it be permissible to hold me accountable if I weren't aware that somebody else had put things up for share without my knowledge. As long as I had engaged in the due diligence necessary for the scenario, it wouldn't be my liability.

Translation

[Atomm]

Oops, I messed up.

Further Translation: A higher authority already had an established precedent which contradicts his instructions to the jury.

It appears this further backs the statement that simply "making available" isn't enough.

WAIT!!

[whisper_jeff]

Wait a second! You mean that for violation of distribution rights to actually happen, copies have to be distributed?? I wish somebody had said something sooner!!

sigh...

I guess the courts getting a clue later is better than not at all...

Basically, it's like this:

[parliboy]

You know that Jammie Thomas lady that was ordered to pay out $222,000? Turns out that the judge is concerned it isn't likely to survive appeal because he gave the jury bad instruction. Basically, he said that the plaintiffs don't have to prove that actual distribution takes place; just the fact that the files were in a distributable folder is enough. And she lost. Badly. But now, Jammie's lawyers have come up with prior law that basically says, "What you talkin' 'about, Judge?" Not just weird fringe stuff, but pretty firm law that has withstood some trials already.

Re:Basically, it's like this:

[NewYorkCountryLawyer]

But now, Jammie's lawyers have come up with prior law that basically says, "What you talkin' 'about, Judge?" Not so. The judge came to the realization on his own. He got no help from any of the lawyers, even Ms. Thomas's lawyer.

This is really a beautiful moment for our democracy, to see a judge on his own realizing his mistake, and instead of just sitting on it, doing something about it. I have to say... this is a big man.

Re:Basically, it's like this:

[CodeBuster]

It wasn't entirely the fault of the judge. As NYCL has already said, the defense attorney failed in his duty to his client, Mr. Thomas, by not mentioning the precedent and the RIAA attorneys failed in their professional responsibility as officers of the court in not mentioning it to the judge, even though it might have damaged their "making available equals distribution" argument. Apparently, although IANAL, it the responsibility of the lawyers to present precedents, whether positive or negative, that have bearing upon the essential matters currently at hand in any particular case.

Re:Basically, it's like this:

[NotBornYesterday]

He realized that his mistake may have improperly influenced the outcome and now he has magnanimously given the person another chance even though it would have been easier for him to ignore it.

You can never expect that human actions will be without error. Judges, & lawyers all make mistakes like the rest of us. What stands out about this is that he did something about it. His actions are remarkable, and I applaud him.

If everyone else held themselves to the same standard, we wouldn't have this BS in the courts.

Does Media Sentry count?

[Shagg]

It'll be interesting, if there is a new trial where the RIAA has to prove distribution, whether the judge considers MediaSentry downloads to be proof of infringement. I guess technically it is, but that also raises the question of whether or not the amount of downloads has any bearing on the size of the penalty/fine. If MediaSentry can download from you to show infringement, can they do it 1000 times in order to try and increase the fine? I would hope the answer is "No", but what would the court say?

If MediaSentry downloads do not count as infringement, then the RIAA is pretty much screwed. It's going to be virtually impossible for the RIAA to prove distribution over the internet between independent parties. The only possibility I can think of is if they start getting trace data from ISPs showing P2P traffic.

Which takes guts

[phorm]

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.

Quite muddying the waters.

[spun]

No, you quite being an idiot who didn't RTFA. MediaSentry searched for certain files without downloading them. Sorry, but it is you and the GP who are both imprecise slackers who couldn't be bothered to read the article and posted without knowing what you were talking about.

Bad Analogy

[spun]

Here's a better one: Someone sees a jar labeled poison on your windowsill and turns you in to the Poison Industry of America, who file suit against you for having poison, which their clients have a patent on. However, all you had was a jar labeled poison, and no one actually proved that it contained anything but water, let alone the PIA patented poison.

Re:Bad Analogy

[j00r0m4nc3r]

But if you had a CD labeled "Poison" you should definitely be punished.

Re: Yup.

[Chris Burke]

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, Uh, that comma is not an "or". It means that distribution of a work by making it available on a computer network is a crime. Yet until distribution has actually occurred, then the terms of that clause are not satisfied. "Making it available on a computer network" is by itself not sufficient. The "distribution" part is not optional.

And the 8th District Court of Appeals agrees with me, so while IANAL, I'm going to go with what they say.

This meme has to stop

[mr_matticus]

And yet citizens, who have even less expertise in law than lawyers and judges, are expected to obey the law and can be punished for not doing so. No one citizen is responsible for knowing even a fraction of the law. The vast majority of law doesn't apply to the vast majority of people.

The basic citizen, with whom you seem to be so concerned, doesn't need to know the laws for reporting to the Securities and Exchange Commission. They don't need to know the laws about chemical pollution. If you get involved in specific activities, you're responsible for doing those activities in a manner consistent with the law. You don't need to retain information on the proper disposal of refrigerants, because most people will never deal with it at all, and most of those who do can simply follow the instructions. There's no persistent knowledge required.

There is no functioning legal system possible such that every person could ever understand the totality of law. It's a ludicrous idea, unless you're willing to throw out courts and jurisprudence altogether. People handle themselves just fine with a basic sense of right and wrong. Exceptions really are exceptions.

There is no single citizen actually responsible for knowing and obeying more than a tiny fraction of the law that a typical lawyer should have command of. People are socialized and raised to a sufficient degree of knowledge, most of which should be expected of a citizen without needing to be codified in law in the first place. Knowing how to be a decent person gets you nine-tenths of the way there. It's sadly a fading characteristic.

Just Another Reason I Ignore Judges Instructions

[DeanFox]

Just don't get caught. Judges don't like us thinking for ourselves and will punish you for it. Funny, jury instructions were the result because they consider us too stupid to think for our selves. We're not educated enough about the law to decide right from wrong... What about when the populace becomes wiser than the system?

Like if you find the defendant possessed 'n' ounces of 'y' then you must find the defendant guilty of distributing 'n'. Err no... Judge, I will find the defendant guilty of distribution if you've proven to me he was selling it. All kinds of sites on jury nullification exist that argue the error of judges instructions.

I remember one jury I was on. We were instructed at lunch break we were not allow to visit the restaurant and intersection where the incident took place. Bullshit. Me and several others, the first thing we did was to have lunch at the McD's where it all happened and discovered the Police were lying in their testimony (go figure). Oh ya, we weren't allowed to talk about it between ourselves either and we ignored that too. Without these facts we probably would have convicted an innocent man. Screw judges instructions. I can make up my own mind whats right and wrong and don't need the judge thinking for me.

Remember, the RIAA lead lawyer is being promoted to State Judge... You really want to listen to what he thinks or decide for yourself right from wrong?

-[d]-