Analysis by Eric Bangeman of Ars Technica, who covered the Virgin v. Thomas trial in-person:
How the RIAA tasted victory: a perfect storm which might not be repeatedComplete article.
By Eric Bangeman | Published: October 07, 2007 - 11:40PM CT
What happens next?
Should Thomas decide to appeal the verdict, one possible avenue would be the jury instructions, where this "perfect storm" of a victory came together. Instruction no. 15 was the subject of debate between the two sides before closing arguments. Judge Michael Davis' original instruction read as follows:
The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners' exclusive right to distribution. An actual transfer must take place.
After a conference on the final morning of the trial, the instruction took on its final form:
The act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners' exclusive right of distribution, regardless of whether actual distribution has been shown.
As those who have followed the history of the RIAA's litigation closely will recall, the question of whether making a file available on a P2P network is distribution as defined by the Copyright Act is a contentious one. There have been a handful of rulings which say that it does, but the issue has also been fully briefed in Elektra v. Barker and Warner v. Cassin. The judges there have both promised rulings on the issue.
Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs