Is Making Available Enough
Late last month, I joined a group of law professors led by University of Minnesota professor Tom Cotter in submitting an amicus brief in the copyright case of Capitol v. Thomas. The brief describes us as “scholars at American law schools who teach and write about intellectual property law in general and copyright law in particular,” support Thomas’ position. Because the case was heard in Minnesota, representatives from Hamline University School of Law and William Mitchell College of Law joined Professor Cotter in the brief.
The Duluth case was nationally known because of the jury verdict of $220,000 to the RIAA The defendant, Jammie Thomas, was found guilty of willful copyright infringement and charged $9,250 each for 24 songs she downloaded and made available online.
The case was reheard because a number of jurisdictions are asking whether the existence of MP3 files on a computer drive made available for others as a source of uploading is copyright infringement. The Wired Blog covers it well. The brief explains that copyright law does not recognize the making available for copying a separate act of copyright infringment. To be liable for copying, a party must copy.
But the anti-RIAA public should not see this as a route against the music industry. In a civil lawsuit, where the standard for proof requires that it is more probable than not that the defendant is guilty, the evidence provided by a computer drive filled with MP3 files which has been made available to bittorrent or other peer-to-peer software networks may well be sufficient evidence for a jury to reasonably conclude that the owner of the computer copied files to the drive and other copied files from the drive - all without the purchase of lawful copies.
Two years ago, this controversy did not exist because the presence of the MP3 files was itself evidence of copying. Now that MP3 files can be readily purchased, having a computer filled with the files simply reflects that you are a music fan.
The recommendation provides a modest correction in the evidentiary issues surrounding copyright infringment.
