We received this interesting report from one of our citizen journalists:
After Wired and Ars Technica reports left the courtroom for the afternoon the Judge and Counsel discussed the proposed jury instructions. In regards to jury instruction #14 Mr. Gabriel tried to add that "Making Available" was an infringement of plaintiffs exclusive rights. Mr Gabriel cited many cases in his verbal discussion and a 2002 letter to congress by Mary Beth Peters of the Copyright office supposedly supporting his point that current U.S. law holds "making available" for distribution as infringement. Mr. Toder did not concur with the objections and stated he would like the jury instruction to remain as it stands. Judge Davis said he would take the objection under advisement and meet counsel at 8:15 tomorrow morning to discuss any final objections and making his rulings. The closing statements will begin at 9:30 AM tomorrow morning.This indicates to me that the judge, after reading the proposed jury instructions submitted by both sides' attorneys prior to the trial, disagreed with Mr. Gabriel's proposed instruction that "making available" would be a copyright infringement. And this evening, he gave both attorneys a copy of the instructions he was planning to give the jurors, which excluded "making available", in order to give the attorneys an opportunity to file any objections. And Mr. Gabriel objected. So now the Judge will allow further discussion tomorrow morning. But it suggests that the judge preliminarily rejected Mr. Gabriel's argument.
It is not surprising that Mr. Gabriel is still beating the drum for his novel "making available" argument, even though he has abandoned it in his Complaints, because it would be much easier to try to prove "making available" than it would be to try to prove copyright infringement. Unfortunately, "making available" is not a copyright infringement. It is a creation of the RIAA lawyers' imagination.
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