• by Wendy Davis , Staff Writer @wendyndavis, October 9, 2007

The record industry's courtroom victory over Jammie Thomas is continuing to cause waves among pundits, who are weighing in on both the bad publicity generated by the case and whether the judge in the case correctly interpreted copyright law.

As for the negative publicity, it's hard to debate that RIAA engendered bad will with this $222,000 verdict against a single mother who was found to have uploaded two dozen songs to Kazaa. Whether RIAA feels that the message this case sends outweighs the bad PR is a decision only it can make -- but the record industry surely is aware that its legal campaign against file-sharing hasn't yet made a dent in the practice.

The more intriguing question -- and one that will ultimately be answered by the courts -- is whether making something available for copying really constitutes infringement. The judge in the Thomas trial thought the answer was yes, and instructed the jury that making material available for piracy was sufficient. The actual instruction read: "The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown."

But this theory is far from universally accepted. The Electronic Frontier Foundation argues that the instruction misstated the law -- and that at least one judge has come to a contrary decision in a high-profile case. In 2005, federal district court judge Marilyn Patel dismissed one of the counts in a lawsuit against the original Napster investors on the ground that the record labels had only shown that tracks were listed in an index, not that they were downloaded. "Copyright holders have to prove that someone actually downloaded the file from you before you can be found liable for distributing," stated the EFF in a post about that decision. (Patel ruled against Napster on other counts in the case, finding that "the sum of ... evidence strongly suggests that at least some of plaintiffs' copyrighted works were uploaded and downloaded by Napster users.")

Arguably, the jury in the Thomas case could have decided that there was statistical and/or circumstantial evidence showing that files that Thomas allegedly uploaded were also downloaded. But we'll never know whether the jurors believed that -- because the judge told the jury it could find copyright infringement regardless of whether the files were distributed. Given that instruction, it's far from clear-cut that the record label's victory will hold up on appeal.