In Capitol v. Thomas, the case in which the RIAA obtained a $222,000 jury award, District Judge Michael J. Davis has sua sponte issued an order stating that he believes he may have committed a "manifest error of law" by giving the jurors an incorrect jury instruction which accepted the RIAA's "making available" theory.
The judge stated that neither Ms. Thomas's lawyer, nor the RIAA's team of lawyers, had brought to the Court's attention the controlling opinion of the United States Court of Appeals for the Eighth Circuit, in National Car Rental System v. Computer Associates, which had held that there can be no infringement of the 17 USC 106(3) "distribution right" without actual dissemination of copies or phonorecords.
The judge also noted that the RIAA had relied upon the initial, August 20, 2007, decision in Atlantic v. Howell, which had been vacated on September 27, 2007, a week before the trial.
The judge has ordered the parties to file briefs, has invited amicus curiae briefs, and has scheduled oral argument for July 1st.
[Ed. note. If it is true that neither Mr. Toder nor Mr. Gabriel cited the National Car Rental case, then, in my professional opinion, Mr. Gabriel and those involved in briefing Capitol v. Thomas for the RIAA have breached their duty to bring to the Court's attention controlling contrary authorities. Certainly Mr. Gabriel was aware of the case, as it has been cited in numerous briefs which my office, and which other lawyers all across the country, have filed, in cases where the RIAA was seeking to foist its "making available" theory on the Court. Interestingly, the scheduled date of the oral argument, July 1st, is the same date that Mr. Gabriel starts his new job as a state court judge in Colorado, so that one of the other stormtroopers will have to face a very angry Judge Davis that day. -R.B.]
May 15, 2008, Order suggesting possible manifest error of law and calling for briefs and oral argument*
* Document published online at Internet Law & Regulation
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