Debate Over “Making Available” Jury Instruction As Capitol v. Thomas Wraps

As Capitol v. Thomas heads to the jury, the attorneys sparred over the question of whether making a file available over a P2P network was infringement. The judge’s proposed jury instructions say that “an actual transfer must take place” in order for copyright infringement to occur. This instruction could make it near impossible for the RIAA to win this case.

Apparently, in an update the Judge has said that Instruction 14 (actual transfer) will be ignored temporarily. In the first case to make it to trial over copyright infringement and file sharing networks things definately seem to be going well or the defense.

I am very curious as to what the real implications are if Thomas ends up winning this case since it would effectively set precedent that “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”

This could be a major setback for the recording industry as proving that an actual file transfer took place is much harder to prove then if someone just made a file available.

If anyone is interested in this case the site referenced below has been making updates as developments occur in this case. Of course, I will be keeping an eye on it as well.

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