RIAA Convinces Trial Judge to Accept RIAA's "Making Available" Theory

Ars Technica reports that the RIAA succeeded in convincing the trial judge in Virgin v. Thomas to change his jury instruction to accept the RIAA's "making available" theory.

According to Ars, the judge's instruction, which was handed out to counsel last night, initially said

"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."

But the Judge this morning, accepting Richard Gabriel's argument, changed it:

Gabriel cited Perfect 10 v. Amazon.com and the original Napster case to support the RIAA's view that making a file available for distribution over a peer-to-peer network was a violation of the Copyright Act. "If there's an index and something behind it, that's distribution," argued Gabriel.

The judge seemed particularly interested in UMG v. Lindor, and while that particular case was being discussed, Matt Oppenheim of the RIAA was consulting the "anti-RIAA blog" The Recording Industry vs The People. Gabriel noted that he was lead counsel in that case as well and that the decision cited in the case wasn't applicable to the matter at hand.

Toder disagreed, but at the end, Judge Davis amended the instruction to say that the "act of making available for electronic distribution... violates the copyright owner's exclusive copyright." That decision should make it easier for the jury to find Thomas liable.

Complete article

[Editor's Note: We received an unconfirmed phone message from someone identifying himself as Matt Oppenheim, who indicated that the above report was incorrect as he is not "of the RIAA". The caller did not give a phone number or indicate who Matt Oppenheim is affiliated with. We do note that we have seen reports in other media that Matt Oppenheim is affiliated with the "Oppenheim Group". However, we looked at a website of the "Oppenheim Group" and were not able to confirm that. Matthew Oppenheim has been, on several occasions, in court appearances, introduced to the Court as being "the client" or as being a representative of "the industry", and Mr. Gabriel has refused to confirm to me who Matt Oppenheim is in fact affiliated with. So we do not credit the phone call. If Mr. Oppenheim calls me again, can verify he is who he says he is, gives me contact information, and gives me details of who he is affiliated with and what his role is in these litigations, I will be pleased to report same on my blog. All we know and can corroborate at this time about Matthew Oppenheim is that he was a lawyer at Jenner & Block until December 31, 2006, and that prior to that he was in house counsel at the RIAA. Mr. Oppenheim did not suggest that we had misquoted Ars Technica in any way.]

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