Law School Profs Back Defendant In Kazaa Case

by Wendy Davis, Jun 20, 2008, 7:00 AM

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Single mother Jammie Thomas, ordered to pay $220,000 for allegedly sharing 24 tracks on Kazaa, is getting some help from law professors and a major digital rights group.

A law school and a group of copyright scholars from around the country have filed separate friend-of-the-court briefs on behalf of Thomas, arguing that a federal judge wrongly interpreted the law during Thomas's trial. The civil liberties group Electronic Frontier Foundation will also file a friend-of-the-court brief today.

The judge in the case, Michael Davis of Duluth, Minn., instructed the jury that simply making tracks available on a peer-to-peer site was enough to violate the record companies' copyright. But last month, Davis questionedwhether he made the right decision. He asked for an additional briefing and said he might order a new trial.

One friend-of-the-court brief filed by 10 legal scholars from around the country argues that tracks online are not "distributed" for copyright purposes unless they are downloaded. "Merely making work available to the public, whether over the Internet or otherwise, by itself does not constitute a distribution," the brief states.

Another, submitted by the William Mitchell College of Law's Intellectual Property Institute, criticizes Davis's jury instruction as a broadening of copyright law. "Positivist rulings by the judiciary that expand copyright protections, even under the guise of protecting authors' interests, risk upsetting the delicate balance established by Congress," the institute argues.

Niels B. Schaumann, a William Mitchell faculty member, said lawmakers need to hammer out new nationwide policies covering copyright in the digital era. "We shouldn't just hand this off to record companies and judges around the country," he said.

In recent months, other courts throughout the country have come to different conclusions about whether making tracks available can constitute a copyright violation. 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 decided that simply offering tracks can potentially violate a copyright holder's rights.

In some cases, the record companies do not have any evidence that tracks found on a person's Kazaa folder were ever downloaded by anyone else.

But in other cases, the record industry's investigators downloaded the tracks before a lawsuit was filed. In those instances, however, it's unclear that the distribution was unauthorized.

Much is at stake for both individuals like Thomas--who are potentially liable for up to $30,000 for each track they have placed in a shared music file--and the record industry, which has seen tremendous disruption to its business model in recent years.

The record industry's revenue plunged to around $10 billion last year, from around $15 billion in 2000. The record labels' first reaction was to sue Web companies like the original Napster. When that didn't stem the declining sales, the industry began pursuing a strategy of litigation against alleged online file-sharers. Since 2003, the record labels have sued or threatened to sue an estimated 26,000 people. Jammie Thomas is the first and only person so far found liable after a jury trial.

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