• by Wendy Davis  @wendyndavis, June 23, 2008

The film industry is asking a judge to leave intact a verdict ordering Minnesota resident Jammie Thomas to pay record labels $220,000 for allegedly sharing 24 music tracks on Kazaa.

The Motion Picture Association of America argues that the judge, Michael Davis of Duluth, Minn., correctly instructed the jury that simply making tracks available on a peer-to-peer site was enough to violate the record companies' exclusive right to distribute. Otherwise, the movie industry contends, many cases charging online users with copyright infringement would have to be dismissed.

"It is often very difficult, and in some cases impossible, to provide ... direct proof when confronting modern forms of copyright infringement," the motion picture group argued in a friend-of-the-court brief. "Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement."

Davis initially accepted the record industry's argument and ruled that making tracks available on a peer-to-peer site could violate the record companies' copyright. But last month, Davis questioned whether he made the right decision. He asked for additional briefing about whether simply making music files available was a copyright infringement, or if there must also be proof that someone downloaded the files. If he rules in Thomas's favor, he will order a new trial for Thomas.

This issue is key to the record industry's strategy of suing alleged file-sharers. Revenue from record sales fell to around $10 billion last year, down around 33% from 2000. The record labels initially sued companies like the original Napster. Then, in 2003, the record labels began suing--or threatening to sue--ordinary people. In the last five years, the record industry has targeted an estimated 26,000 people, but Jammie Thomas is the only one so far found liable after a jury trial.

Digital rights groups including the Electronic Frontier Foundation and Public Knowledge also weighed in on the case Friday, arguing that Thomas should have a new trial. They contend that a ruling that allows content owners to equate making files available with distribution could leave a wide range of Web companies liable for infringement. "An inappropriately expansive reading of the distribution right will have far-reaching effects on the rights of users of digital works as well as the ability of innovators to find new, legal uses for those works," they wrote in their friend-of-the-court brief.

A law school and a group of copyright scholars from around the country filed separate friend-of-the-court briefs on behalf of Thomas earlier last week.

In recent months, other courts have reached 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 not clear that the distribution was unauthorized.