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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 peerto‐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 far‐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 ‐ 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.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She self publishes NA and contemporaries (and publishes with Berkley and Montlake) and spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com


  1. whey
    Sep 25, 2008 @ 11:03:37

    Guess Jammie Thomas can stop selling “Free Jammie Thomas” thongs now. And we are all the better for it.

  2. Folklore Fanatic
    Sep 25, 2008 @ 21:17:10

    I wonder what the decision would be iffile-sharing worked on a system like an RSS feed? I mean, if there is some intermediary system between simply hosting or posting data files and active dissemination, wouldn’t that mean that the R.I.A.A. should have focused its arguments on KaZaa and not on individual users? Or is it the option of allowing someone to access personal files on your own turf that determines one’s culpability? Because if that’s the case, we’d all be up shit creek if a hacker or some malware made it easy for others to transmit and distribute information to and from our computers (which happens every second).

    That crazy internet. It makes simple concepts like ‘private possession’ and ‘intent to distribute’ such tricksy areas.

  3. MS Jones
    Sep 26, 2008 @ 11:13:33

    Whoa! This is huge.

    Wired is reporting that Pirate Bay is trying to obtain a Kindle, presumably to set up a filesharing system so that books saved on a Kindle can be downloaded for free onto other devices.

    If I’m understanding the court’s decision (“…a publication effected by merely offering to distribute copies or phonorecords to the public is merely an offer of distribution, not an actual distribution”) then distributing one’s ebooks to others (via Napster-like file sharing) would not be prosecutable.

  4. Jane
    Sep 26, 2008 @ 11:15:42

    That’s not exactly the way I see it but it is huge, MS Jones. How I see it is if you have a folder with copyrighted material that other people can access, that is not active dissemination. I would think, though, if you took proactive steps to make that copyrighted material to others that it might be active dissemination but the mere existence of the folder that is available and has copyrighted material is not. Who knows though.

  5. MS Jones
    Sep 26, 2008 @ 12:43:35

    You’re right, that’s how I read it too, I may not have said what I meant (not enough caffeine yet this morning).

    It seems the music-making and book-publishing industries would get more traction suing the websites that facilitate copyright infringement rather than going after college students and single moms. That’s assuming that piracy really is bad for business, though. A Canadian study found that it was not:

    “music downloads have a positive effect on music purchases among Canadian downloaders”

    It seems as though the music industry has decided to go with the free flow at Myspace. So maybe the Thomas lawsuit is a holdover from back in the days when the industry thought piracy was evil.

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