Second-Guessing the RIAA Jury's Verdict

Second-Guessing the RIAA Jury's Verdict

Before it deliberates and delivers a verdict, a jury is given a set of jury instructions by the judge. These are the judge's statement of the law that the jury is supposed to apply to the case. They're a fertile ground for dispute, both before and after the verdict, because the way you formulate the rule often determines the outcome of the case. That's exactly what happened in the recent RIAA jury trial, where the RIAA presented compelling evidence that the defendant made songs publicly available on the P2P network Kazaa, but didn't establish that anyone else actually downloaded them.

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.

By telling the jury that merely putting the songs in an accessible folder constitutes infringement, this instruction foreclosed an argument that could have gotten defendant Thomas off the hook. It's far from settled that “making available” constitutes infringement – the Copyright Act doesn't mention actions other than copying and distributing. Copying and distributing are elements of the claim, which (one could argue) the RIAA must prove before it can hold someone liable for infringement. Commenter Macknzie makes a good point in Murph's post on the subject: criminal law allows inchoate offenses (where the offense is an uncompleted attempt to do something else), whereas civil law generally requires the plaintiff to prove that the unlawful action was completed. Without having shown a completed act of copying or distributing, the RIAA may not have met its burden. If the instruction is overturned, a judge could say that there was not enough evidence as a matter of law to find infringement without proof of a completed offense, and thus throw out the verdict.

That's not to say the instruction was necessarily wrong. A higher court could very well approve of the judge's formulation, taking into account the difficulty of proving that third parties downloaded infringing files. It does, however, offer an interesting and novel issue for appeal.



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Here's a critical question: Did the defendant object to the jury instruction?

If not, the issue is ordinarily waived, and would foreclose any argument on appeal. It would still be open for the next defendant, but this one would be out of luck. It's one of those little legal twists that can keep an interesting issue from being decided for quite a while.

But I don't know if it's different in MN state court or on the 8th Circuit (whichever hosted this little party--that's not clear to me from Murph's post) than the courts I'm familiar with. Perhaps they're more lenient about that sort of thing.

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