A group of university professors is weighing in on the Jammie Thomas case, telling the trial judge he erred when instructing jurors that having an open share folder filled with copyrighted music amounts to infringement – even absent proof that somebody else downloaded songs.

A Duluth, Minnesota jury in October subsequently dinged Thomas $222,000 for "making available" 24 unauthorized songs in what was the Recording Industry Association of America's first and only case against a file sharer to go to trial.

Last month, however, the judge presiding over the case, Michael Davis, suggested he should not have told jurors that Thomas was liable simply for having an open share folder on the Kazaa network. The judge invited briefing by the RIAA, Thomas' lawyers and the public at large. A hearing is set for August.

So far, only a group of ten copyright scholars weighed in, telling Davis that actual distribution to the public must be shown. Such a requirement, however, is technologically infeasible.

The professors reviewed for the judge the text of the Copyright Act, which allows up to $150,000 in damages per violation. The act says a copyright 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 professors argue:

"The plain language of the statutory text, as confirmed by other courts and leading commentators, compels but one conclusion: that merely making a work available to the public, whether over the internet or otherwise, by itself does not constitute a distribution. More precisely, because a defendant 'distributes' in violation of § 106(3) only when she actually transfers to the public the possession or ownership of copies or phonorecords of a work, no distribution is effected merely by making a work available for distribution on a peer-to-peer network."

To nab an infringer, investigators for the RIAA log into Kazaa, for example, peer into share folders, make screen shots, capture the IP address, and also download some music as well. (An Arizona judge last month ruled in a different case that the RIAA must prove distribution, but that the RIAA's agents' downloads copied from the defendant's share folder counted against the defendant. That issue is being appealed on grounds that the RIAA authorized the downloading, so no unauthorized distribution took place.)

The "making available" issue, combined with whether the RIAA's downloads can be used to prove distribution, are important questions of law whose ultimate answers promise to change the course of the RIAA's litigation machine, with more than 20,000 copyright infringement lawsuits filed so far.

Just a handful of judges have said actual distribution is required. Most lawsuits settle for a few thousand dollars without the question being litigated. The U.S. Supreme Court has not squarely addressed the issue and only one judge said RIAA downloads count as distribution.

(It should be noted that having an open share folder of child pornography counts as criminally distributing child porn, regardless if others download it.)

Still, even if judge Davis sides with the professors and Thomas, that doesn't mean the mother of two wins.

Thomas Cotter, a University of Minnesota intellectual property scholar and one of the brief's backers, agreed that the judge could decide to leave the verdict intact because the 24 downloads the RIAA made from Thomas' share folder count against her. Still, Cotter doesn't think that's the right decision.

"A download that is authorized by somebody acting on behalf of the copyright owner shouldn't count for infringement," he said. "There's so many different ways this case can play out."

Other scenarios include a retrial in which the RIAA can use its downloads against Thomas, a dismissal and an out-of-court settlement.

A 12-member jury spent five minutes before concluding Thomas was liable. Here is a link to THREAT LEVEL's gavel-to-gavel coverage of the trial and RIAA litigation in general.

Photo Mermadon