It can't be easy for a federal judge to admit that he was wrong when giving jury instructions in a high-profile case, but the judge in the Jammie Thomas file-swapping case has stepped up and cast serious doubt on his own actions. Following other court rulings around the country, Judge Michael Davis indicated that he may grant Thomas a new trial after telling the jury that simply "making available" a copyrighted song on P2P networks counted as infringement. Now, Davis has asked for public comment on "whether the Court committed a manifest error of law in instructing the jury." The first public response to that question offers a resounding "yes" in response.

Nine copyright professors have filed a "friend of the court" brief (found via Threat Level) that addresses Davis' question. While the "making available" issue can be tedious, technical, and contradictory (different court rulings have gone different ways), the brief actually does a fine job of making the debate accessible.

The main thrust of the argument is a simple one: a close look at the actual words of the relevant copyright statute show that rights holders have the exclusive prerogative to "distribute copies or phonorecords of the copyrighted work to the public." The key question concerns whether just making available a file in a shared directory counts as a distribution to the public, and the professors argue that it clearly does not.

Dictionaries are trotted out to define the word "distribute," after which the professors conclude, "Although the act of making copies or phonorecords available may enable the public to acquire possession or ownership of the copies or phonorecords, unless and until members of the public actually obtain such possession or ownership the necessary final step for transforming the 'making available' into a distribution would be lacking."



Jammie Thomas

The professors also argue that other cases in which judges have conflated "making available" with "distribution" are "with all due respect, incorrect" and not binding on the court. (In Atlantic v. Howell, the court indicated that "making available" was not enough to prove "distribution," while in Elektra v. Barker, another court indicated that it was.)

The brief addresses only a question of law, not the broader question of whether Thomas is guilty of infringement. In fact, the professors suggest that copyright holders could pursue Thomas and others using a variety of different scenarios. Although simply making a file available might not count as infringement, the person who makes the file available may have violated the exclusive "reproduction right" held by copyright owners. This right is violated whenever someone copies in CD to a computer, but those cases are generally considered to be fair use. If someone copies a CD to a computer in order to do something "unfair" with it (uploading it to a P2P network), that person could be liable for infringement.

Other possible avenues of attack include charges of indirect infringement for helping others to download infringing files and charges of direct infringement for downloaders. The obvious problem here is that this sort of activity is very difficult for the RIAA to prove. Instead, the organization's investigators generally look into shared KaZaA folders or grab the IP addresses of BitTorrent users who host parts of particular files.

It would be much simpler for the RIAA if "making available" were good enough to demonstrate copyright infringement, but if it isn't, investigators can actually download the files in question. This isn't the preferred alternative because it takes more time, bandwidth, and computing resources, but it does at least have the virtue of showing that an actual transmission of the file took place.

But even this approach isn't without problems, because the Copyright Act specifies that the distribution must be made "to the public." There is currently some controversy about whether a rightsholder-sanctioned download counts as a "public distribution." Many defendants argue that, since MediaSentry is employed by the RIAA to seek out and download files from P2P networks, the downloads done by the company are not unauthorized.

If neither a MediaSentry download nor a list of files made available on P2P networks are good enough for the courts, then the RIAA could find itself in much more difficult territory.