• by Wendy Davis  @wendyndavis, May 19, 2008

Last year, it appeared that the record industry won a major battle when a jury found Jammie Thomas liable for piracy in the first case against an alleged file-sharer to go to trial.

But now, the federal district court judge who presided over the trial, Michael Davis of Duluth, Minn., is considering ordering a new trial on the grounds that he might have "committed a manifest error of law."

In a ruling issued last week, Davis wrote that he may have erred by telling the jurors they could find Thomas liable for having made tracks available for downloading via Kazaa. Originally, he had planned to tell the jurors that they must find that the tracks actually were downloaded before they could conclude she had violated the record labels' copyright. But at the last minute, the record industry convinced him to charge that merely making tracks available could constitute copyright infringement.

The jury concluded Thomas had made 24 tracks available on Kazaa and ordered the single mother to pay $220,000 for infringement.

Since then, however, a federal judge in Arizona, Neil Wake, ruled that making tracks available wasn't in itself enough to prove copyright infringement. Instead, Wake held that a download must also take place to prove piracy. But a federal judge in New York ruled last month that simply offering tracks can potentially violate a copyright holder's rights.

In many instances of alleged piracy, the record industry might be able to prove that a download took place because its agents download the files in the course of their investigation. Defense lawyers argue that such downloads are authorized and can't violate copyright law, but Wake in Arizona held that investigatory downloads could potentially prove infringement.

A spokesperson for the Record Industry Association of America stated that the judge "got the issue right the first time."

"This technicality does not change the overwhelming facts and evidence that ultimately proved Ms. Thomas' liability," the spokeswoman stated. "Although we do not believe that the court should disturb the unanimous verdict of the 12 jurors, if we have to re-try the case, we will do so without hesitation."

Davis has asked each side to submit additional briefs, and oral arguments will be heard July 1.