RIAA about to Lose it All?

What if the music companies realized they should work with file sharers rather than attack them?  What if the RIAA's only significant law suit against a music downloader fell apart on a legal error?  What would they do?

Well, we should soon have the answers to some of these questions.

As we have reported repeatedly on this blog, last October the Recording Industry Association of America - RIAA - achieved what many commentators on the industry described in unison as a significant victory when alleged file sharer Jammie Thomas was ordered to pay in excess of $222,000 for music piracy by sharing access to his music files.  This conclusion sent a shockwave throughout the music community.

But persistent and important legal questions which we have commented upon here remain.  These questions hang on the idea of sharing versus downloading.  And this is far from settled, it remains a sticky mess for the RIAA.  The question is focused upon whether the act of simply making a song available for others to copy is an active and indefensible act of infringement.  There remains the possibility of a new trial and the thuggish tactics of the recording companies (in several cases going to extreme and potentially illegal steps to find file sharers, especially on college campuses) are not going to serve them well in a new trial.

According to Catherine Rampell, different courts have come to different conclusions on the “making available” argument:

[Some] courts have said that making a song available on one’s computer for download does constitute infringement, while others have decided that an unauthorized download must be proven to have occurred as a result of the song’s being made available. In the Jammie Thomas case, which is the first and only music-sharing case to go to a jury trial, the judge specifically instructed the jury that if Ms. Thomas had made songs available, she had committed copyright infringement.

And at long last it appears that this instruction conflicted with a binding precedent from the very same court.  And, of course that is a bit of a mistake for a court to have committed.  The presiding district judge said he may have committed “a manifest error of law” in his jury instructions that would require nothing less than a new trial for Thomas.  Given that the RIAA and individual record companies point to the Thomas case as their "standard" regarding file sharing, they may have a serious problem here.

This is especially important given the increased efforts of the association which has been going after college file sharers with renewed vigor following the Thomas case.  So, this mess may have profound and long lasting consequences for these college (and a few high school) file sharers threatened with fines and lawsuits by the RIAA.  This could force a realignment over these issues which could potentially lead to a very good outcome.  It is far past the time when the association should embrace and use file sharing in some way as a means of getting music into the ears of fans rather than attacking them for their devotion to the music.

There is a serious flaw in what the Association has done in concentrating its efforts on catching college students who share music.   The flaw as we have consistently reported here is that the record companies have publicly acknowledged that they have no identifiable way of telling if a student (or other user whatsoever for that matter) is making an illegal download from shared files. It can only tell one thing and one thing alone:  when users have potentially made music available for others to download.  Last I checked, you cannot convict on the possibility.

So, as you can see the RIAA has a big problem here.