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Jury Instruction no. 14, Capitol v. Thomas

arstechnica.com has fairly detailed coverage of the Capitol v. Thomas case, in which the music industry has sued Jammie Thomas for allegedly making a number of music files available over Kazaa.  The case is the first of its kind to go to full trial.  From reading the arstechnica.com accounts, it appears that the music industry has amassed pretty good evidence that Ms. Thomas’ computer was used to make copyrighted files available.  Ms. Thomas has denied using Kazaa and has raised the possibility that someone spoofed her IP address or otherwise took over her computer.

An interesting detail to the trial has been the parties’ disagreement over jury instruction 14.  The original instruction read “The mere act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network without license from copyright owners does not violate the copyright owners’ exclusive right to distribution.” The music industry’s lawyer objected, successfully arguing that merely making recordings available violated the distribution right.

Although interesting in an academic sense, the argument about instruction 14 should not affect the case.  Even if Thomas had prevailed, her placing music files in a Kazaa folder probably infringed the plaintiffs’ right of reproduction.  Thus, unless Thomas could successfully claim that her uses were fair (something she apparently has not done), her chances of prevailing seem poor.

As of this writing, I’m not aware of a verdict in the case.  I’m very curious to see how much the jury will award in statutory damages should Thomas lose the case.