Copyright Infringement Requires Active Dissemination; RIAA Judgment Overturned
In a decision that will have far reaching effects into the publishing world if upheld, Judge Davis in the RIAA case versus Thomas found that RIAA’s verdict of $222,000, was improperly given. The jury instruction did not properly state the law. The decision (pdf) came down to the meaning of distribution:
Each party asserts that the Court should adopt the plain meaning of the term "distribution;" however, they disagree on what that plain meaning is. Thomas and her supporters argue that the plain meaning of the statute compels the conclusion that merely making a work available to the public does not constitute a distribution. Instead, a distribution only occurs when a defendant actually transfers to the public the possession or ownership of copies or phonorecords of a work. Plaintiffs and their supporters assert that making a work available for distribution is sufficient.
In this case, Thomas made copies of music available for distribution by placing them in a folder on her computer where others on the internet could access them. The court ultimately found that distribution requires some affirmative act of dissemination. The judge carefully considers every possible angle including comparable criminal statutes, other language within the copyright law and even treaties.
The Court concludes that simply because all distributions within the meaning of § 106(3) are publications does not mean that all publications within the meaning of § 101 are distributions. The statutory definition of publication is broader than the term distribution as used in § 106(3). A publication can occur by means of the "distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease or lending." § 101. This portion of the definition of publication defines a distribution as set forth in § 106(3). However, a publication may also occur by "offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display." § 101. While a publication effected by distributing copies or phonorecords of the work is a distribution, a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution.
The court goes on to say that Congressional intervention is needed:
The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peertoâ€peer network cases such as the one currently before this Court.
The court found that the law is not well suited for punishing individuals because the statutory damages do not actually deter piracy nor does it properly punish the crime.
The statutory damages awarded against Thomas are not a deterrent against those who pirate music in order to profit. Thomas’s conduct was motivated by her desire to obtain the copyrighted music for her own use. The Court does not condone Thomas’s actions, but it would be a farce to say that a single mother’s acts of using Kazaa are the equivalent, for example, to the acts of global financial firms illegally infringing on copyrights in order to profit in the securities market.
While the Court does not discount Plaintiffs’ claim that, cumulatively, illegal downloading has farâ€reaching effects on their businesses, the damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs. Thomas allegedly infringed on the copyrights of 24 songs â€ the equivalent of approximately three CDs, costing less than $54, and yet the total damages awarded is $222,000 – more than five hundred times the cost of buying 24 separate CDs and more than four thousand times the cost of three CDs. While the Copyright Act was intended to permit statutory damages that are larger than the simple cost of the infringed works in order to make infringing a far less attractive alternative than legitimately purchasing the songs, surely damages that are more than one hundred times the cost of the works would serve as a sufficient deterrent.
The Eighth Circuit Appellate court is notoriously pro business so it will be interesting whether this decision will be overturned. If not, it puts a real damper on the RIAA efforts to sue individuals and makes future suits contemplated by publishers.