Blown To Bits

“Sending a Message”: Revisited

Sunday, June 22nd, 2008 by Hal Abelson

As we were completing Blown to Bits, the big news on the copyright war front was the Jammie Thomas trial. (See “Sending a Message” in Chapter 6.) This was the first of the thousands of peer-to-peer lawsuits filed by the RIAA to go all the way to a jury trial. Thomas lost and lost big: The jury not only found the Minnesota woman guilty of sharing 24 songs using Kazaa, but they imposed a fine of $220,000: $9250 per song. This was a huge victory for the record companies, because the demonstrated reality of such high stakes for losing in court is a huge incentive for other targets of RIAA lawsuits to settle.

Now the verdict is being called into question. In May, trial court judge Michael Davis issued a ruling saying that he may have made a legal error in instructing the jury.

Here’s the issue: Thomas, and the other P2P lawsuit targets are accused of infringing copyright by illegally distributing music tracks. What they actually did (allegedly), was to place the music tracks on their computers in a way that made them available over the network. Does ‚Äúmaking available‚Äù count as ‚Äúdistribution‚Äù under the copyright law, or does ‚Äúdistribution‚Äù require the files actually be disseminated? This issue has come up before, and different courts have ruled differently on the issue. Judge Davis instructed the Thomas jury that ‚Äúmaking available‚Äù does in fact count as distribution. Now it appears that there is an appeals Court ruling in the 8th Circuit going other way: ‚Äúdistribution‚Äù requires actual dissemination of material, not just ‚Äúmaking available‚Äù. Since Minnesota is in the 8th Circuit, that should be a governing precedent in the Thomas case. Davis will hear arguments on the issue in hardings scheduled for July 1.

These gyrations underscore how uncomfortable the legal system becomes when old notions of copyright confront new digital realities and just how much the copyright balance has been toppled by the world of bits.

And things can get even murkier. As Villanova Law Professor Michael Carroll points out (, the RIAA, in arguing for the ‚Äúmaking available‚Äù interpretation of distribution, may want to be careful of what it’s wishing for. US copyright law includes a provision called the first-sale doctrine, which says that once you’ve acquired a copy of something, it’s legal to redistribute it. That’s why used book stores are legal, for example. So if making music tracks available counts as distribution, it ought to be OK under the first-sale doctrine. In that case, the record companies would probably argue that placing music on a P2P network counts as contributory infringement, and the legal merry-go-round rides would continue.

2 Responses to ““Sending a Message”: Revisited”

  1. Damon Stallings Says:

    I am a single rap artist, I’m want to be the first sucessful rap artist to come out of Boston,MA. Everyone in my neighborhood tells me I have the talent to take my career to the next level.My name is very simple and catchy, Spaz-D is the rap name. In my neighborhood they been calling me Spaz since I was 11 years old. Truthfully the neighborhood I am from has alot of great talent, but the problem is no producers or A&R agents come to Boston,MA to look for talent. Most of the time their to busy looking in wrong place or the same place. Places such as, Chicago, New York, and California. I thought the music business was about diversity or expanding horizons to for the world to see and here something new.

  2. Harry Lewis Says:

    What ever gave you that idea? It’s about money. Thanks for posting and good luck to you! I hope you find a way through the thickets. Do you know about Garageband?