A federal judge on Monday will consider reversing the nation's first and only federal jury verdict against a Kazaa user for distributing copyrighted music on a peer-to-peer network without the labels' authorization.

The outcome is likely to have wide-ranging implications in the Recording Industry Association of America's file-sharing litigation campaign –- 20,000 lawsuits and counting. Most cases have settled out of court for a few thousand dollars and had never broached the topic of whether the RIAA must prove copyright violations.

Jammie Thomas testifying in her civil trial last October, while U.S. District Judge Michael Davis watches from the bench.

Courtroom sketch: Wired News/ Cate WhittemoreThe RIAA claims that infringement on peer-to-peer networks is implied, and that it shouldn't have to provide proof – because it's impossible.

"Requiring proof of actual transfers would cripple efforts to enforce copyright owners' rights online – and would solely benefit those who seek to freeload off plaintiff's investment," said RIAA attorney Timothy Reynolds in a court filing (.pdf).

Whether actual proof is necessary will be debated in a Duluth, Minnesota federal courtroom Monday morning. (Threat Level will be there). The arguments will focus on the trial of Jammie Thomas, a Minnesota woman dinged $222,000 by a Duluth jury in October for having an open share folder on the Kazaa network.

Thomas had more than 1,000 songs in the folder, but the RIAA sued her over 24 tracks. The jury spent five minutes concluding her liability after a four-day trial.

U.S. District Judge Michael Davis, who presided over the case, now thinks he may have erred when he instructed the jury that actual proof of downloading was not necessary.

Davis had instructed (.pdf) the jury that the recording industry did not have to prove anybody else downloaded the songs from Thomas' open share folder. Davis told jurors they could find unauthorized distribution – copyright infringement – if Thomas was "making copyrighted sound recordings available" over a peer-to-peer network "regardless of whether actual distribution has been shown."

The judge, seven months after the jury returned its verdict, wrote in a brief order that he may have committed "manifest error of the law" and ordered Monday's hearing.

Since the RIAA's litigation campaign began five years ago, at least three judges have ruled against the RIAA on this point. Those rulings were in pretrial stages, and didn't necessarily kill the cases. The RIAA is exploring other legal theories.

Still, neither a federal appeals court nor the U.S. Supreme Court has decided the "making available" issue. (It should be noted that having an open share folder of child pornography counts as criminally distributing child porn, regardless if others download it.)

Digital rights groups and law professors have sided with Thomas.

They point out that the Copyright Act says a rights holder has the exclusive right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." The Electronic Frontier Foundation, for example, wrote that the Copyright Act doesn't allow damages for "attempted" copyright infringement, and has urged the Thomas judge to demand the showing of an actual "transfer" of a copyrighted work.

The Motion Picture Association of America, the movie studios' lobbying arm, has urged the judge to side with the RIAA. The group, like the RIAA, says that it is impossible to detect actual infringement in the peer-to-peer context.

In the Thomas case and in the thousands of others, the RIAA sues after online detectives log onto Kazaa, Limewire and other file sharing services. They peer into open share folders, take screen shots of the music listed and download some of the songs. They also obtain IP addresses, which are easily determined on open networks.

With those addresses, the RIAA subpoenas internet service providers to cough up the identity of the account holder. The RIAA then sues the account holder, who usually settles out of court.

Still, it's technologically impossible for the RIAA to prove that others on the Kazaa network are downloading music directly from somebody else's share folder.

An interesting footnote to the discussion is whether Judge Davis would allow the 24 downloads the RIAA's detectives made from Thomas' share folder as evidence of unauthorized distribution.

One federal judge who has ruled that the RIAA must prove downloads also said in the same opinion that the downloads made by RIAA investigators count as evidence of unauthorized distribution. Digital rights groups say those downloads should not count against a defendant because the detectives were authorized by the music industry to make the downloads.

The Copyright Act allows damages of up to $150,000 per violation. Thomas and others are challenging the constitutionality of the measure, arguing that the damages are unconstitutionally excessive.

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