First music download trial may get a do-over

MINNEAPOLIS - A Minnesota woman ordered to pay $222,000 in the nation's first music download trial may get another chance with a jury.

The issue is whether record companies have to prove anyone else actually downloaded their copyrighted songs, or whether it's enough to argue that a defendant made copyrighted music available for copying.

The recording industry has sued thousands of people who shared music online, and has argued that all they have to prove is that the defendant made the music available. They compared it to someone displaying pirated DVDs for sale on a table.

Music-sharers have argued that the only proven downloaders of their music were investigators working for the record companies themselves.

That was the case in the trial last fall of Jammie Thomas of Brainerd. U.S. District Court Judge Michael J. Davis instructed jurors that making sound recordings available without permission violates record company copyrights "regardless of whether actual distribution has been shown."

On Thursday Davis said that may have been a mistake.

He wrote that he found a 1993 ruling from the 8th Circuit Court of Appeals, which covers Minnesota, that said infringement requires "an actual dissemination of either copies or phonorecords."

The question of how much the record companies have to prove to win their case came up just before it went to the jury on Oct. 4. Davis decided the issue from the bench, siding with the jury instruction favored by the record companies.

On Thursday, Davis wrote that neither side presented the 1993 decision to him. And he noted that one of the rulings in another case from Arizona, which the record companies used to support their side, was vacated on April 29.

Oral arguments on the question of a new trial are planned for July 1 in Duluth, where the trial was held.

Record company attorney Richard Gabriel said even if the companies have to prove downloading occurred, it should suffice to show downloading by investigators working for the record companies.

He said they also proved at the trial that Thomas violated the copyright because the files on her computer bore the signatures of online music pirates. Thomas claimed the music came from her own CDs.

"If we have to retry the case, we will do so without hesitation," he said.

Record companies have sued at least 30,000 people for distributing music online. Some cases have been dismissed, and many defendants settled for a few thousand dollars. Thomas, who makes $36,000 a year working for the Mille Lacs Band of Ojibwe, was the first to take the record companies all the way to a trial.

Jurors ordered her to pay $222,000, which was $9,250 for each of the 24 songs record companies brought up in her trial. The original lawsuit accused her of offering 1,702 songs on the Kazaa file-sharing network.

Thomas has not yet had to pay the verdict while it has been on appeal, her attorney, Brian Toder, said on Thursday. Toder, of the Minneapolis law firm of Chestnut & Cambronne, said he's in talks with the record companies to settle the case.

Toder had asked for a new trial because he said the $222,000 verdict was unconstitutionally out of proportion to the damages against the record companies. That issue would be moot if the judge orders a new trial.

The question of how much the record companies must prove to win their lawsuits seems destined for more dates with appeals court judges.

Different judges have ruled different ways on the matter. Last month a federal judge at a pretrial ruling in Boston said that merely making the songs available online is not copyright infringement. But a ruling by a New York judge took the opposite position.

Ray Beckerman, an attorney who has represented other downloading defendants and runs a blog tracking the most prominent cases, said the Recording Industry Association of America has been using the Thomas verdict to support its side.

"We've been saying all along that it was submitted to the jury on an improper theory, and now the judge recognizes his error and he realizes he was misled by record industry lawyers," Beckerman said.

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