In an appearance on CNN along with her attorney Brian Toder, Jammie Thomas announced her decision to appeal last week's $222,000 willful copyright infringement verdict. The basis of her appeal will be jury instruction no. 15, which told the jurors that they could find Thomas liable for copyright infringement if she made the recordings available over a file-sharing network, "regardless of whether actual distribution has been shown."

The "making available" argument is a contentious one. As we noted last night in "How the RIAA tasted victory," judges have gone both ways on this issue. The question of whether making a file available over a P2P network falls under the category of distribution as defined by the Copyright Act is by no means settled in the eyes of the law.

During the hearing over the jury instructions, the RIAA cited a number of cases in which a judge had ruled that making a file available constituted distribution. In one such case, Atlantic v. Howell, the judge has since reversed his decision. Copyright attorney Ray Beckerman reported late last week that Judge Neil V. Wake overturned his earlier granting of a summary judgment, in which he had followed the RIAA's interpretation of the making available argument.

According to a post on Thomas' MySpace page, the appeal will center around the "making available" argument. The hope is that the RIAA "would actually have to prove a file was shared and by someone other than their own licensed agent (read MediaSentry)," writes Thomas.

Should the verdict be overturned due to faulty jury instructions, the RIAA and Thomas would both have expensive decisions to make on whether it would be worthwhile to try the case once again. Although the RIAA freely admits that its lawsuit campaign is a money-losing proposition, the prospect of paying for another trial and spending another week in Duluth, MN, can't be very attractive. Thomas, who is already facing legal fees of over $60,000 on top of the judgment, may not want to repeat the trial experience again, either, especially since much of the RIAA' evidence against her was strong.

Ars contacted both the RIAA and Toder for comment, but did not immediately receive a reply.