Yesterday, WiReD's David Kravets reports, Thomas pointedly asked the appeals specialist retained by the RIAA, Donald Verrilli, why Congress hadn't made it clear that it didn't need to prove anything: The burden of proof is on the defendant, and by passing the Act Congress made its intentions clear.
"If the owner of a video rental store made an unauthorized copyright video available on the shelves of the store," the RIAA argued in its brief, "courts did not require copyright owners to sit monitoring the store and waiting for someone - if they could catch him - to rent or buy the video in question. Rather, the offer to sell, rent or give away the video has always been enough."
The RIAA also argues that shared songs violate its exclusive right to authorise distribution - and that's where courts have found its arguments to be weakest.
"The First Circuit has squarely considered and rejected the proposition that copyright liability arises where the defendant authorized an infringement, but no actual infringement occurred… Authorization is sufficient to give rise to liability, but only if an infringing act occurs after the authorization."
(It's easy to forget, that the law mentions "distribution" merely as an example of the publication right, not the other way around.)
Maritime legal expert Brian Toder - dismissed and then rehired by Thomas as her attorney - says that if the only person who demonstrably downloaded the songs was the RIAA's enforcement contractor MediaSentry, then no liability should be attached.
A dismissal of the original case, hinted at yesterday, would be a sensational verdict - but would still leave the matter unresolved. The verdict would (naturally) be appealed and the matter would head towards federal courts.
You can see why the RIAA has pushed for "intentional inducement to infringe" to be added to the legal code - a move that would make tape recorders illegal. ®