The Recording Industry Association of America on Monday urged a federal judge to leave intact a $222,000 jury verdict against Jammie Thomas, the Minnesota mother of two who has become a public symbol of the RIAA's litigation campaign of more than 20,000 copyright lawsuits against peer-to-peer file sharers.

The RIAA echoed its sister lobbying group, the Motion Picture Association of America, by telling the Thomas judge that solely making available copyrighted works on a peer-to-peer network is enough to prove unauthorized distribution with fines of up to $150,000 per violation. Any higher standard of actual proof, the RIAA said, would "cripple" copyright enforcement in the digital age.

"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 wrote (.pdf) U.S. District Judge Michael Davis on Monday.

Reynolds said "the statutory text and decades of precedent compel the conclusion that making copyrighted works available for distribution violates a copyright owner's exclusive right of distribution even if has not been proven that specific unauthorized copies have changed hands."

In May, Judge Davis suggested he may have erred when he told Duluth, Minnesota jurors that they could find Thomas liable for infringement absent proof that members of the public had downloaded music from her Kazaa share folder. In October, the jury concluded Thomas' liability in five minutes and spent a few more hours deciding on financial punishment for 24 violations.

Judge Davis called for briefs from Thomas, the RIAA and the public at large over whether a new trial should be granted. Reynolds pointed out "Millions of people use services like Kazaa to make copyrighted works available for illegal downloading. Copyright owners typically have no way to monitor – much less prove – the actual transfer of those files."

Most of the 20,000-plus RIAA lawsuits have settled out of court for a few thousand dollars without the legal question at issue here ever being broached. When it is litigated, most of the decisions have sided with the RIAA, although at least two have gone the other way. Thomas' case is the only one to go to trial.

Digital rights groups have weighed in (.pdf) on the case, saying the "making available" argument amounts to "attempted" copyright infringement that is not covered under the Copyright Act of 1976. The MPAA also weighed in on the case last week backing the RIAA's position.

The RIAA, meanwhile, said regardless of whether the "making available" jury instruction, No. 15,(.pdf) that Judge Davis read to panelists "correctly states the law," Thomas is liable for infringement because of "unimpeachable findings of willful infringement" during the trial.

Among those findings, Reynolds said, was the act of Thomas having copies of copyrighted music in her share folder, which was a violation of the Copyright Act, he said. "The jury's findings that Thomas engaged in the unauthorized reproduction of plaintiff's sound recordings suffices to sustain the verdict," Reynolds said.

The jury verdict form, (.pdf) however, makes no reference to "unauthorized reproduction" and instead repeatedly refers to "act of infringement" and not reproduction. And although Reynolds said it was impossible to prove the transfer of music on Kazaa, he wrote Judge Davis that the 1,702 audio files on Thomas' hard drive were downloaded from Kazaa.

"Defendant had copied the bulk of these sound recordings from other Kazaa users," he wrote.

Still, jury instruction No. 9 says Thomas can be liable for infringement if she "used an online media distribution system known as Kazaa to download the plaintiffs’ copyrighted recordings and/or to distribute the copyrighted recordings to the public."

Thomas lawyer, Brian Toder, told the judge Monday in a court filing .(pdf) that a new trial was warranted because it was unclear whether jurors found Thomas liable under the making available concept or whether she possessed unauthorized downloads.

"The special verdict form provides no incite [sic] as to what specific acts the jurors considered in reaching their verdict," Toder wrote.

The RIAA also noted that MediaSentry, the group's private investigators, indeed made downloads of the 24 songs in which Thomas was found liable of violating. "Thus, unlawful distribution is proven here even if an actual transfer of an infringing copyright is required (and it is not)," Reynolds wrote. "It does not matter that a representative of the copyright owners downloaded the copies."

The RIAA cites a host of cases it says backs up such an assertion, but none in the peer-to-peer context. Reynolds also noted court decisions in which libraries or video stores have been found liable for unauthorized distribution of copyrighted works for merely making those works available to the public – absent somebody checking them out or renting them.

"Any other conclusion would contravene sound policy and common sense, because it would preclude proving infringement where the defendant's intent to infringe and the certainly of infringements are clear but evidence of the actual act of transfer is nearly impossible to detect," Reynolds wrote.

And in the criminal context, Reynolds wrote, sharing child pornography on Kazaa is unlawful distribution of illegal obscenity. A public hearing is set for Aug. 4 in Duluth federal court.

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