September 25, 2008

Judge orders new trial in historic music downloading case, agrees with IP Institute’s brief

In issuing an order Wednesday, Sept. 24, 2008, granting a new trial in Capitol Records v. Jammie Thomas, U.S. District Court Judge Michael Davis essentially adopted the position of the amicus curie brief filed by the Intellectual Property Institute at William Mitchell College of Law, Professor Ken Port, IP Institute director, said today.

The music downloading case may ultimately impact the recording industry as well as millions of people who download music from the Internet.

At trial, Davis incorrectly instructed the jury that posting music amounted to "distribution" under Section 106(3) of the Copyright Act. In his new order, Port said Davis takes the unusual step of vacating a jury verdict and damage award and ordering a new trial.

This case had been the first case in the United States where the record industry was awarded statutory damages for music sharing. The IP Institute took the position that the Copyright Act should be read as it is written:  posting of music on a website is not "distribution" of music as contemplated by the Copyright Act because the Act requires "sale or other transfer of ownership." No one other than the recording industry’s investigator actually downloaded any of Thomas’ posted music. As such, there had been no sale or other transfer of ownership. That is, posting the music is not distributing the music as defined in the Act. As such, when Judge Davis instructed the jury to the contrary, he committed reversible error, Port added.

The Institute’s brief was principally drafted by student Draeke Weseman ‘09 with input from William Mitchell Vice Dean for Faculty Niels B. Schaumann and IP Institute Director and Professor Ken Port. Carl Christensen ’05, Christensen Law Office, acted as co-author of the brief and attorney of record for the IP Institute.

The case of Capitol Records v. Jammie Thomas made history in October 2007 when a jury in the U.S. District Court in Minnesota found Thomas liable for copyright infringement. Thomas is alleged to have made copyrighted music available to the public through the Kazaa network. This was the first case against an alleged file-sharer to go to trial, and the victory for the Recording Industry Association of America (RIAA) generated much national attention.

 Judge Davis originally instructed jurors that having an open folder on the Kazaa network--whether or not it was shown anyone actually downloaded the files—was enough to violate the record companies’ copyright.

The judge invited briefing by the RIAA, Thomas’ lawyers, and the public at large. The William Mitchell IP Institute brief said Davis’s original jury instruction is a broadening of copyright law. "Positivist rulings by the judiciary that expand copyright protections, even under the guise of protecting authors’ interests, risk upsetting the delicate balance established by Congress," the Institute said in the brief.

About the William Mitchell College of Law Intellectual Property Institute
William Mitchell’s IP Institute is to help preserve the balance between what knowledge is privately owned and what is accessible to the public. The Institute’s four full-time faculty and students are engaged in the rigorous exploration of the balance between privately owned and publicly shared innovation to help ensure the best overall outcomes for our society. One way the Institute impacts intellectual property law policy is by writing amicus briefs on influential cases around the country. The Thomas case is the third amicus brief the Institute has filed so far this year.