• by Wendy Davis , Staff Writer @wendyndavis, September 25, 2008

In the last five years, the RIAA has threatened to sue around 30,000 individuals for file-sharing. While many have settled outside of court, usually for $3,000 to $5,000, a few have fought the charges. To date, however, only one defendant, Jammie Thomas, has rolled the dice with a jury.

Thomas lost her gamble last year, when a jury found the single mother liable for sharing 24 tracks on Kazaa and ordered her to pay $220,000 in damages.

But the judge who presided over Thomas's trial, Michael Davis of Duluth, Minn., has just set aside that verdict and ordered a new trial. In the 44-page decision, Davis ruled that he wrongly told the jurors they could find Thomas liable if she made tracks available for downloading, regardless of whether they were downloaded.

Davis later had second thoughts about that instruction and, in May, he asked lawyers for Thomas and the RIAA to submit additional arguments about the issue.

The case attracted widespread attention, with digital rights groups like the Electronic Frontier Foundation weighing in on Thomas's behalf, while the movie studios sided with the record industry. In a friend-of-the-court brief, the MPAA argued that copyright owners could find it impossible to prove piracy if they had to show that tracks uploaded to peer-to-peer services had also been downloaded by other users.

"Mandating that proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement," the motion picture group argued in its papers.

The RIAA made a similar argument. "Millions of people use services like Kazaa to make copyrighted works available for illegal downloading," the record labels said in their court papers. "Copyright owners typically have no way to monitor--much less prove--the actual transfer of those files."

Of course, in many cases, the RIAA only brings lawsuits after its own investigator has downloaded tracks allegedly tied to individual users' accounts. Defense lawyers say those downloads can't prove copyright infringement because they were authorized, but the law's not clear on that point.

There's no question, however, that the RIAA would find it easier to prove its case if it only had to show that a defendant made tracks available on a peer-to-peer network.

In the Thomas case, Davis additionally criticized the size of the verdict as "unprecedented and oppressive." Because he ordered a new trial, he didn't rule on Thomas's separate motion to set aside the verdict as excessive.

He nonetheless called on Congress to lower the penalties for copyright infringement by non-commercial users like Thomas, noting that the cost of purchasing 24 songs on three CDs would have come to around $54.

At this point, even if the RIAA retries the case, and if it again finds Thomas liable and orders a six-figure damage award, it wouldn't be at all surprising for Davis to slash that award as excessive.