Copyright holders shouldn't have to prove that an unauthorized distribution of their work occurred in order to collect damages, according to the Motion Picture Association of America. The group made its argument in an amicus brief filed on Friday to Judge Michael Davis, the judge overseeing the Jammie Thomas trial, after he asked for feedback from the industry before deciding whether to order a mistrial. Both sides realize that the stakes are high and are throwing everything they've got Judge Davis' way.

At the time of the Jammie Thomas trial, Thomas was found liable for $9,250 in damages per song for a collection of 24 songs that she made available online, for a total of $222,000 in total damages. Since there was no direct way to know if anyone else had downloaded even one of the 24 songs (aside from the downloads made by the investigators), Judge Davis told the jury to make its decision based on the fact that Thomas had a handful of files shared. In May, however, Davis said that he may have made a "manual error of law" when instructing the jury. He then asked the attorneys for both cases (as well as other "interested parties") to submit amicus briefs in order to help him decide how to proceed on the case.

In its filing, the MPAA says that the mere act of "making available" a copyrighted piece on a P2P network should serve as sufficient evidence of copyright infringement. The group "urges the Court not to impose any requirement of actual distribution" because it argues that the Copyright Act allows content owners a broad right of distribution, not just control over actual distributions.

Therefore, anyone who makes files available over P2P networks should be deemed to have satisfied the requirements of actual distribution, even if proof of that actual distribution doesn't exist. "The only purpose for placing copyrighted works in the shared folder is, of course, to 'share,' by making those works available to countless other P2P networks," wrote the MPAA. It sees arguments to the contrary as mere technicalities designed to make it harder for rightsholders to prosecute infringers.

The Electronic Frontier Foundation shot back with its own amicus brief, arguing that the Copyright Act does not grant a "making available" right to copyright owners. It also said that trade groups shouldn't be allowed to claim that an actual distribution took place based solely on downloads from their own investigators.

According to the MPAA, providing this level of evidence is just too hard. "It is often very difficult, and in some cases impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise," writes the group. "Understandably, copyright infringers typically do not keep records of infringement. Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances."

It's clear from the MPAA's and the EFF's briefs that the Jammie Thomas case won't be fading into memory any time soon. Another hearing on the case is scheduled for August, at which time Thomas may get the new trial that she has been asking for since last October.

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