Reversal of RIAA Decision?

[flashl]

Jammie Thomas judge: "error of law" may result in new trial

Jammie Thomas may get another chance to make her case before a jury. Judge Michael Davis notified attorneys earlier today that he is leaning towards granting Thomas' request for a new trial in light of what he now apparently believes was a flawed jury instruction.

"The Court is concerned that Jury Instruction 15 may have been contrary to binding Eighth Circuit precedent," Davis wrote in an order seen by the Minneapolis Star-Tribune and filed this morning. The instruction in question was a point of contention as testimony in Virgin v. Thomas wrapped up. The first draft of the jury instructions specified that merely making a file available over a P2P network wasn't sufficient to prove infringement. Instead, the RIAA must show that an "actual transfer took place."

But RIAA lead counsel Richard Gabriel argued forcefully that merely making a file available on KaZaA was sufficient to prove infringement, and Judge Davis ultimately agreed. Now, the judge believes that he made a "manifest error of law." Here's the text of instruction 15 as it was given to the jury:

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.

Thomas' appeal of the $222,000 verdict actually hinged on what she argues are "unconstitutionally excessive" damages; she didn't raise the making-available issue in her notice of remittur filed 11 days after the verdict was handed down. She wanted a new trial with any award to be based on the RIAA's actual damages, a figure that one recording industry executive testified it "had not stopped to calculate."

ARS Technica