Can you really sue for attempted copyright infringement? The EFF doesn't think so and has filed an amicus brief arguing that the major record labels must prove infringement actually took place before claiming copyright infringement.In some circles, she's guilty. In other circles, she's innocent. The one thing both sides might agree on is that the the Jammie Thomas trial is a landmark trial in US file-sharing history. Earlier today, we reported that 10 law professors suggest that the 'making available' theory is not copyright infringement. At issue is whether or not putting a supposed copyrighted song into a shared directory is copyright infringement. The idea of attempted copyright infringement isn't new considering the INDUCE act brought up this kind of question back in 2004 which, according to Wikipedia, "targets "whoever intentionally induces any violation" of copyright" While the legislation is dead, the idea of 'attempted copyright infringement' lives on to this day, making it's appearance in court during the Jammie Thomas trial through what is known as the 'making available theory'. As mentioned, 10 law professors have already told the courts the following: The plain language of the statutory text, as confirmed by other courts and leading commentators, compels but one conclusion: that merely making a work available to the public, whether over the internet or otherwise, by itself does not constitute a distribution. More precisely, because a defendant 'distributes' in violation of § 106(3) only when she actually transfers to the public the possession or ownership of copies or phonorecords of a work, no distribution is effected merely by making a work available for distribution on a peer-to-peer network. Now, the EFF has filed its own amicus brief. In a press release, the EFF says that it is demanding a retrial because of potential consequences of the current ruling. "The Copyright Act simply does not allow suing someone for attempted copyright infringement," said EFF Staff Attorney Corynne McSherry. "If the RIAA wants to continue with its mass litigation campaign, it's going to have to invest the time and resources to actually prove those cases -- if it can -- by showing that infringement actually occurred." "The RIAA's specious 'making available' argument threatens to brand people as thieves when the evidence isn't really there," said EFF Senior Intellectual Property Attorney Michael Kwun. "We're pleased the judge is taking a second look at this critical question." Currently, the judge in the trial is re-considering the judgement put on Jammie Thomas where the guilty verdict landed Thomas in a $222,000 fine. Here's a highlight of the amicus brief from the EFF: Ms. Thomas, like more than 20,000 other individuals, was sued by Plaintiffs for copyright infringement based on her use of peer-to-peer (“P2P”) file sharing software. The jury was instructed that: Whether or not this will change the outcome of this particular trial is up to debate, but the important thing is some of the precedents that this case is setting - particularly in light of other judgments that strike down the idea of the making available theory. |
 
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