What's Next for Jammie Thomas?
October 25, 2007
By Solveig Singleton

The RIAA's case against Jammie Thomas made headlines recently when the district court returned a damages award of US $222,000 for sharing music files online. Thomas is now expected to appeal. On appeal, her attorneys would be expected to challenge the judge's ruling that "making available" files in a Kazaa shared directory is enough to establish liability, without proof that another user actually downloaded the files.

Yet challenging the "making available" theory is likely to be more successful as a news bite than as a legal argument. Although P2P services are relatively new on the scene, the legal system has already churned its way through the problem at some level. The Supreme Court and others have equated "distribute," as used in the Copyright Act, with "publish," defined by the Act as "the offering to distribute copies or phonorecords to a group of persons for the purpose of further distribution." WIPO treaties to which the United States is a signatory define an exclusive right of "making available to the public" protected works; and the Copyright Office maintains that this right is protected by US law. Consistent with this, intellectual property expert Jane Ginsburg of Columbia Law School argues that making a work available on a public network ought to be enough to establish liability when, for example, an infringing radio broadcast is transmitted, even if no one actually tunes in to listen to it.

A few outlying cases, though, such as Sega v. Maphia, suggest that liability would be for contributory, not direct, infringement. More recent cases involving posting copyrighted works on electronic bulletin boards or websites have had no trouble finding direct liability, even when there was no evidence of actual downloads.

In more recent P2P cases, while simply indexing material is not enough to be considered "making available to the public," indexing material and also keeping the files available for redistribution has been assumed to qualify. Thus Napster's index of files on its network was insufficient to establish Napster's liability for direct infringement alone (although Napster was found liable for contributory infringement), but user uploading or downloading was held to infringe. In similar cases, a number of district courts have refused to dismiss "making available" cases out of hand.

If one is unfamiliar with the way proof works in civil cases, the "making available" theory seems to be giving the plaintiff a shortcut. For example: suppose the defendant's wireless setup is hijacked by an intruder. Apparently, the plaintiff still wins. But this is a misconception. The plaintiff would not win, if in legal jargon, after his "prima facie" case is made, the alleged infringer is able to show some evidence that another actor was in fact responsible. Here Jammie Thomas' attorneys faced a problem: her hard drive was replaced and was not available at the time of trial. This handicap has affected evidence-gathering in significant number of trials in which P2P usage is at issue.

Judges may be reluctant to make the fragility of hard drives the plaintiff's problem. The problem of requiring plaintiffs to produce evidence that the defendants are best able to preserve is not unique to the P2P context. One example (Hotaling v. Church of Jesus Christ of Latter-Day Saints) involves a copyrighted work "made available" on the shelf of a library. The defendant here argued that the plaintiff must show that a member of the public actually made use of the work. The court rejected this, noting that defining distribution to require such proof would reward libraries that kept poor records.

Arguably, evidence of actual uploading and downloading of files from a P2P network might be less entirely within the defendant's control than the library case. Such evidence can be gathered. In at least one case, the court avoided deciding a challenge to the "making available" theory because an agent for the copyright owner downloaded in order to detect infringement, and this was considered enough to prove a distribution to the public. The hapless uploader was left to argue that because the downloader was an agent of the plaintiff he was not a member of the public, an argument described by one court as "completely without merit."

Either way, if copyright owners were required to produce proof of actual downloads in the future, it would be feasible for them to do so if certain technologies are used. But the letter of the law does not appear to require this result; and furthermore, it is unlikely that a case in which the defendant's actions have made the hard drive unavailable will engage a court's sympathy.

Last of all, it seems unlikely that the court will require proof that a "tangible" copy was made. Though it does not mesh perfectly with the wording of the Copyright Act, the courts have not hesitated to find electronic transmissions tangible enough in earlier cases involving Napster, Aimster, websites, and LEXIS/NEXIS's database.

The "making available" theory of copyright infringement is likely to remain a part of U.S. copyright law. This is, however, no great sinecure for the content side, which still faces an overwhelming enforcement problem. For copyright owners and music lovers, the best future lies with technologies that keep the players out of court.

Solveig Singleton is a lawyer and senior adjunct fellow at the Progress & Freedom Foundation; this article presents her own view and not necessarily that of other PFF staff, board members, or scholars affiliated with the institute, DRM Watch, or Jupitermedia Corp.

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