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After the Thomas case, what next? - October 5, 2007

So where does the legal battle over unauthorized music file-sharing go now?

The record companies will likely see little reason to back off their campaign of suing individual downloaders as a result of the verdict. Their strategy of tying individuals to specific acts of infringement by back-tracking from an IP address got its first test in front of a jury and it held up. They got a damage award large enough to provide a significant deterrent to others thinking of contesting RIAA charges in court. And they got an affirmation in the judge's instructions to the jury of their argument that making works available for download by others should be considered infringement.

Jury instruction No. 15:

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 [emphasis added].

It's probably a bigger win than even the RIAA had hoped for.

What about critics of the RIAA's tactics? Some have argued that the damages awarded are excessive and should be challenged, and further demonstrate the need to reduce the penalties imposed by copyright law. But other experts have called the $220,000 awarded in the Thomas case reasonable, given the current language in the current statute.

In either case, there's little chance that Congress would seriously consider reducing the penalties for copyright infringement. As a political matter, that's a non-starter.

If the Thomas case points anywhere it's toward a fight over liability for making a work "available" for distribution.

The judge in the Thomas case is not the first to have recognized a making-available charge. In February, Judge Cynthia Rufe of the Eastern District of Pennsylvania had this to say:

A plaintiff claiming infringement of the exclusive-distribution right can establish infringement by proof of actual distribution or by proof of offers to distribute, that is proof that the defendant "made available" the copyrighted work.

Section 106 of the copyright statute, which enumerates the copyright owners' exclusive rights, does not refer to making a work available for distribution. Nor has the Supreme Court ever confirmed the copyright owners exclusive right to make the work "available."

But there's plenty of support for the idea in the WIPO Copyright Treaty that was given force in the U.S. through the Digital Millennium Copyright Act, and from the Register of Copyrights Marybeth Peters, who told Rep. Howard Berman (D-CA) in 2002, that "[M]aking [a work] available for other users of a peer to peer network to download ... constitutes an infringement of the exclusive distribution right, as well as the reproduction right."

The record companies and other copyright owners are likely to continuing pressing judges to recognize "making available" as a form of infringement, as they look to gain legal leverage over unlicensed uses of peer-to-peer technology. At some point, someone's likely to push back.

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