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?

[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?

[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?

[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?

[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?

[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.

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:

[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.

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.