Wednesday, October 03, 2007

Argument Over "Making Available" in Virgin v. Thomas

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.


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


Igor said...


But if making available is off the table and not a single witness testified that there was any downloading or uploading (as far as I can tell from the reports) only sharing (making available) from what i can tell ripped content from her CDs...which means it shouldn't even go to the jury and summarily dismissed maybe?


MikeWas said...

Igor raises a good point. But our view of the testimony is heavily filtered, and even given what I've read, it seems that a judge could conclude that expert witness Jacosben's testimony might be enough to allow a jury to find that "downloading" had occurred. Nonetheless, if I were defense counsel I'd probably be moving for a summary dismissal as well.

Even so, the judge knows it's almost certain this will be appealed if he dismisses the case outright. If he thinks the evidence is particularly weak, he might punt to the jury since their factual findings are less likely to be disturbed on appeal than a summary dismissal. If the judge thinks the evidence can't support a verdict, he can always enter a judgment in favor of defendant anyway, but avoid the need for a retrial if reversed on appeal.