• by Wendy Davis  @wendyndavis, August 5, 2008

The record industry cheered last year when it won a lawsuit against Jammie Thomas, who was found liable for copyright infringement for making 24 tracks available on Kazaa. But the record labels had less cause for celebration on Monday, when federal district court judge Michael Davis in Duluth, Minn. reportedly indicated that he intends to order a new trial in the groundbreaking case.

Davis recently said he might have committed "manifest error" when he instructed the jurors that they could find Thomas liable for simply making tracks available on Kazaa. Monday, he suggested again that he was likely to declare a mistrial in the case. "Certainly, I have sent a signal to both sides of where I'm headed," Davis said in court Monday, according to Wired.com.

Last year, a jury ordered Thomas, a single mother, to pay the record labels $220,000. She was the first non-commercial user found liable for copyright infringement for uploading tracks to a file-sharing service.

At her trial, Davis initially said he was going to instruct the jury that it could only find her liable for copyright infringement if it found that tracks linked to Thomas had been downloaded by other users. But at the last minute he changed his mind, and instead told the jury it could find her liable for making tracks available on Kazaa.

In May, Davis reconsidered the instruction and asked the parties to submit briefs about the issue.

Since the Thomas case went to the jury, other federal courts have come to different conclusions about whether making tracks available on a peer-to-peer network constitutes copyright infringement. Federal judge Neil Wake in Arizona ruled that making tracks available was not in itself enough to prove copyright infringement. But a federal judge in New York decided that simply offering tracks can potentially violate a copyright holder's rights.

The Thomas case has drawn the attention of a broad array of organizations, ranging from civil rights groups like the Electronic Frontier Foundation, which asked Davis to throw out the jury's verdict, to the Motion Picture Association of America, which urged Davis to let the decision stand.

The Recording Industry Association of America argued against a new trial, stating in court papers that they typically have no way to know when files are transferred online. But the labels also argue that they should still prevail against Thomas because an investigator downloaded tracks traced to her account.

"A jury of Ms. Thomas' own peers had no difficulty concluding that she committed massive and deliberate infringement," spokesperson Cara Duckworth said in a statement. "Regardless of any technical copyright issue, we are confident their unanimous decision will stand." But Thomas and her defenders argue that the record industry's agents can't infringe the group's copyright because any downloads by investigators were authorized.

Davis expects to decide by next month whether to order a new trial.