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

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.

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...

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?

[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.)