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Professors Dispute Decision In Copyright Infringement Case

June 28, 2008—A group of law professors led by Professor Thomas F. Cotter has submitted a proposed amicus brief in the copyright case of Capitol v. Thomas. The professors, described in the brief as “scholars at American law schools who teach and write about intellectual property law in general and copyright law in particular,” support Thomas’ position.

The case, decided in a Duluth, Minn., court in October 2007, involves a $222,000 jury award to the Recording Industry Association of America (Capitol Records Inc.). The defendant, Jammie Thomas, was found guilty of willful copyright infringement and charged $9,250 each for 24 songs she downloaded and made available online. Whether the songs were actually obtained by others via file sharing was not established.

Subsequently, District Judge Michael J. Davis issued an order stating that he believed he might have committed a manifest error of law in instructing the jury that Thomas could be liable simply for “making files available.” Neither party’s attorney had brought to Davis’ attention a U.S. Court of Appeals opinion holding that there can be no infringement of distribution rights without actual dissemination of copies.

Judge Davis invited interested parties to file amicus briefs in the case, which is pending in the U.S. District Court for the District of Minnesota. Oral arguments are scheduled for August 4.

In their brief, the professors held that the jury instructions did constitute a manifest error of law. They urged the Court “to conclude that the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, does not violate the copyright owner’s exclusive right of distribution.”

Joining Cotter in the action are Olufunmilayo B. Arewa, Northwestern University School of Law; Annemarie Bridy, University of Idaho College of Law; Michael W. Carroll, Villanova University School of Law; Ralph D. Clifford, Southern New England School of Law; Jon M. Garon, Hamline University School of Law; Stephen McJohn, Suffolk University Law School; Tyler T. Ochoa, Santa Clara University School of Law; Malla Pollack, Barkley School of Law; Niels B. Schaumann, William Mitchell College of Law; and Christopher Sprigman, University of Virginia School of Law.

For more information, go to Capitol v. Thomas in the alphabetical list of cases at http://recordingindustryvspeople.blogspot.com/2007/01/index-of-litigation-documents.html.


Thomas Cotter

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