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Record industry refused Jammie Thomas appeal

Judge scratches 'making available'

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The judge in the Jammie Thomas filesharing case has refused the Recording Industry Ass. of America's (RIAA) attempt to revive arguments that "making [music files] available" is copyright infringement.

The record industry had been asking to appeal a decision in September, when federal judge Michael J. Davis ruled that his advice to the jury in the original Jammie Thomas trial was wrong. In 2007 she was ordered to pay $220,000 for sharing 24 songs, after jurors were told that "making available" was equal to distribution.

Last week Davis denied the RIAA an "interlocutory" appeal against his change of heart. He said there was "no substantial ground for a difference of opinion" on the matter, and that an appeal would not "materially advance the ultimate termination of the litigation", copyright lawyer Ray Beckerman noted.

Davis also said that even if his original instruction was correct, the court still had to address whether the damages award to the RIAA were constitutional. In his September ruling, which granted Thomas a retrial, Davis said: "Her alleged acts were illegal, but common. Her status as a consumer who was not seeking to harm her competitors or make a profit does not excuse her behavior. But it does make the award of hundreds of thousands of dollars in damages unprecedented and oppressive."

The retrial will now go ahead.

The RIAA's critics have long believed that without recourse to the "making available" argument to allege copyright infringement, many of its actions against individual filesharers would fail. Thomas' remains the only case where damages have been awarded to the record industry, out of thousands filed (although others have settled out of court for much smaller amounts).

It now looks set to remain so.

Earlier in December, the RIAA said it would stop suing individuals and instead try to get ISPs to warn their customers to stop, and cut them off if they don't.

The new tactic has been modeled on the French "three strikes" proposal. A similar system of warnings is being trialed in the UK, although ISPs have refused to sever customers' broadband connections. ®

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