This article first appeared in World Copyright Law report on November 8, 2007.
In a closely followed file-sharing case, Capitol v Thomas, a federal jury in Minnesota has
returned a $222,000 verdict against Jammie Thomas for making 24 copyrighted sound files
merely available for download on the file-sharing program KaZaA. In response, Thomas
has filed a motion for a new trial or alternatively for the judge to reduce the award, claiming
If her motion is not granted, Thomas has indicated that she will appeal the jury verdict. The
appeal would likely turn on whether merely making a copyrighted work available for
download over a peer-to-peer (P2P) network constitutes ‘distribution’ under US copyright
Critical to the case was a jury instruction that equated making a file available with
distributing a copyrighted work. If the verdict is thrown out due to an incorrect jury
instruction, the case will be re-tried. In her appeal, Thomas is likely to argue that the burden
is on the plaintiff record companies to prove that someone actually downloaded a music file
from her computer.
Barring a new trial on the issue of damages or a radical reduction of the award, the Eighth
Circuit Court of Appeals may be the first federal appellate court to address whether the act
of merely making a file available on a P2P is, by itself, copyright infringement.
Of the few US judges who have addressed this issue in pretrial rulings, most have held that
making a file available on a P2P network is the legal equivalent of distribution as defined by
Section 106(3) of the Copyright Act.
However, on December 22 2006 in UMG v Lindor a New York federal court ordered that
the plaintiff record companies would have to show at trial that the defendant “actually
shared sound files”, which is a higher burden than merely showing that the defendant made
the files available for download. Thus, the question of whether making a copyrighted file
available for download constitutes copyright infringement is far from settled.
For further background, see “RIAA found liable for defendant's costs in file-sharing case”,
“Default judgment issued against daughter of famous P2P defendant”, “BitTorrent user hit
with $35,000 default judgment”, “Downloaders and the entertainment industry - the battle
rages” and “File-sharing lawsuits and the law of unintended consequences”.