Jammie Thomas, left, and her attorney, Brian Toder, leave the courthouse last year after a jury dinged her $222,000 for sharing 24 songs on the Kazaa file-sharing network.

Photo: Associated PressA federal judge on Wednesday set aside the nation's first and only federal jury verdict against a peer-to-peer file sharer for distributing copyrighted music on a peer-to-peer network without the labels' authorization.

U.S. District Judge Michael Davis of Duluth, Minnesota, declared a mistrial in the case of Jammie Thomas, a Minnesota mother of three, setting aside the $222,000 penalty levied by a federal jury last year for copyright infringement – $9,250 for each of the 24 infringing music tracks she made publicly available on the Kazaa file sharing network.

Davis' decision means the Recording Industry Association of America's five-year copyright infringement litigation campaign has never been successful at trial.

Most of the 30,000 cases have settled out of court for a few thousand dollars and have never broached the hot-button legal issue that ultimately prompted Davis to declare a mistrial.

Thomas was the nation's only RIAA target to take her case to trial, which last year ended in an RIAA victory. The case emboldened the recording industry's resolve to continue its public relations effort against file sharing through a nationwide litigation campaign.

The legal brouhaha prompting Davis to declare a mistrial focused at the heart of all file sharing cases: What level of proof was necessary for the RIAA to prevail.

Davis had instructed (.pdf) the jury last year that the recording industry did not have to prove anybody downloaded the songs from Thomas' open Kazaa share folder. Davis read Jury Instruction No. 15 to jurors saying 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."

But Davis had second thoughts and, without any urging from the litigants in the case, summoned the parties back to his courtroom in August, writing in a brief order that he may have committed a "manifest error of the law." He heard arguments from both sides and said he would issue a ruling soon.

With Wednesday's opinion, Davis made his revised position official and ordered a retrial – one with different jury instructions.

"Jury Instruction No. 15 was erroneous, and that error substantially prejudiced Thomas' rights. Based on the court's error in instructing the jury, it grants Thomas a new trial," the judge ruled (.pdf).



The RIAA, which is the music industry's lobbying and litigation arm, fought hard to keep Jury Instruction No. 15 in play. The group told the judge that copyright infringement on peer-to-peer networks is implied, and that it shouldn't have to provide proof of an actual transfer – 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," RIAA attorney Timothy Reynolds said in a court filing (.pdf).

It was the third time a federal judge had ruled against the RIAA on the making-available claim. The decisions in the other two cases were in a pretrial stages, one case of which was dismissed in the RIAA's favor because a judge concluded the defendant had tampered with evidence and ordered him to pay $40,000.

Still, Judge Davis' decision does not derail the RIAA's case against Thomas on retrial or any other pending or future case. Davis ruled that the downloads from Thomas' open share folder that RIAA investigators made, 24 in all, "can form the basis of an infringement claim." The RIAA's investigators make downloads in every case.

Still, during the trial, the RIAA went to great lengths to demonstrate to jurors that Thomas had unlawfully downloaded the 1,000 songs from Kazaa – the same songs she was sharing on Kazaa. The RIAA charged her with 24 song violations.

Violations of the Copyright Act carry fines of up to $150,000 per music track. The act says a rights holder has the exclusive right "to distribute copies or phono-records of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending." One juror told Wired.com after the verdict that some panelists wanted to level $150,000 for each track, but they settled on $9,250 per download.

The RIAA sues after online detectives log onto Kazaa, Limewire and other file sharing services. They look into open share folders, take screenshots 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 because it is substantially cheaper than hiring a lawyer and fighting.

Only one other federal judge has ruled that the downloads made by RIAA investigators count as evidence of unauthorized distribution.The U.S. Supreme Court has never decided the issue.

Digital rights groups say downloads made by RIAA investigators should not count against a defendant because the detectives were authorized by the music industry to make the downloads.

The judge also took a few pages to decry as exorbitant the award the jury rendered against Thomas and urged Congress to change the law.

"While the court does not discount plaintiffs' claim that, cumulatively, illegal downloading has far-reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs -‐ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than 500 times the cost of buying 24 separate CDs and more than 4,000 times the cost of three CDs."

Still, a looming and unsettled issue has recently surfaced involving RIAA file sharing cases. It involves whether RIAA investigators broke the law when they gathered evidence, as they are not licensed investigators.

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