The federal judge who presided over the nation's only peer-to-peer copyright-infringement trial announced from the bench here Monday that he is likely to declare a mistrial.
"Certainly, I have sent a signal to both sides of where I'm headed," U.S. District Judge Michael Davis said during a 70-minute hearing in which lawyers for the Recording Industry Association of America and defendant Jammie Thomas sparred over whether a jury verdict against Thomas should be overturned.
At issue is whether the RIAA needs to prove that copyrighted music offered by a defendant on a peer-to-peer network was actually downloaded by anyone. During Thomas' trial last October, Davis, on the RIAA's recommendation, instructed (.pdf) the jury that no such proof was necessary; if Thomas had the music in her Kazaa shared folder, where it could be downloaded, she could be found liable "regardless of whether actual distribution has been shown."
But in May, long after Thomas had lost the trial and was dinged $222,000, Davis developed second thoughts. He wrote in an order that he may have committed a "manifest error" with that instruction. "I think I surprised everyone," Davis said at the outset of the Monday's hearing. As the hearing wrapped up, there was little evidence that the RIAA's lawyer had changed the judge's mind.
Judge Hints at Mistrial in RIAA v. Jammie Thomas
At this point I will pause to pat myself on the back. I was asking this very question about "availability" being the same as distribution about three years ago. As I've said before, it will be a painful lesson for the RIAA/MPAA goon squad to learn. There's no winning when one tries to pull the wool over the collective eyes of Judges accross the country. The manner in which they slid in the jury instructions regarding availability was underhanded and surely didn't go unnoticed.