Last October a Minnesota jury found Jammie Thomas liable for copyright infringement for KaZaa downloads of 24 copyrighted songs and awarded damages of $9,250 per infringement, a total of $222,000. Last week Michael Davis, the federal judge who presided over Thomas’s trial, said that he erred when instructing the jury that ““the act of making copyrighted sound recordings available for electronic distribution on a peer-to-peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.” In other words, the judge told the jury that it could find Thomas liable for copyright infringement merely by placing copyrighted songs in a KaZaa-shared folder, even if no one copied one of the songs from the folder. That instruction was counter to the 8th Circuit’s 1993 decision in National Car Rental System, Inc. v Computer Associates International, which held, quoting Nimmer on Copyright, that “[i]nfringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.”

The judge’s mea culpa is the latest in a series of judicial pronouncements as to whether “making available” a copyrighted work constitutes infringement of the copyright holder’s distribution right. Two other recent cases include London-Sire Records v Doe, a 31-Mar-08 decision from the federal district court in Boston in which Judge Nancy Gertner examined the issue at length and concluded that “to constitute a violation of the distribution right under § 106(3), the defendants’ actions must do more than ‘authorize; a distribution; they must actually ‘do’ it.” Four weeks later in Atlantic Recording Corporation v Howell the Arizona federal district court cited National Car Rental System, London-Sire Records, and other cases and sources to support its statement that “[t]he general rule, supported by the great weight of authority, is that ‘infringement of [the distribution right] requires an actual dissemination of either copies or phonorecords.’

The issue should be familiar to this semester’s students in Internet law. I used the facts of the Howell case as the basis for their final exam.