This article is related to a prior post, found here: Courts split

 
 In another blow to the recording industry, a Federal District Court Judge in the District of Minnesota in Capitol Records, Inc. v. Jammie Thomas, has granted a new trial in a copyright infringement case stating that his jury instruction was in error when he stated “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 his brief order in Capitol Records, the Judge stated that his decision to grant a new trial was founded on the fact that both parties failed to cite a controlling Eighth Circuit case that held "…infringement of the distribution right requires an actual dissemination of either copies or phonorecords." National Car Rental System, Inc. v. Computer Associates Int’l, Inc., 991 F.2d 426,434 (8th Cir. 1993).

 This order for a new trial is in agreement with the recent decision in London-Sire Records, Inc. v. Doe., a District of Massachusetts case in the First Circuit that denied a subpoena to identify Doe because the recording company failed to state a claim of copyright infringement if there was no evidence of an actual distribution/download.

 The new trial decision, however, is contrary to the case in Elektra v. Barker, in the Southern District of New York, where the judge held that “making available” is enough to state a claim of copyright infringement.  Elektra was in the Second Circuit.
 

So far the Supreme Court has not ruled on the finely pointed question of whether “making a copyrighted song available for download” infringes upon a copyright owners exclusive right to distribution.

 It remains to be see how much attention these recent decisions get in the other Circuits as the onslaught of recording industry cases funnels itself through the District Courts.

Yesterday, May 12th, the Federal Trade Commission (FTC) released a new rule under the CAN-SPAM Act.  The new rule seeks to clarify some of the requirements CAN-SPAM imposes on senders of bulk email. 

• First, an E-mail recipient cannot be required by the sender to pay a fee, supply any information other E-mail address and opt-out  preference, or take any steps other than sending a reply E-mail  or visiting a single Web page to opt out.  From personal experience, many commercial websites add you automatically to their mailing list if you purchase something from them. This is fine; however, if you want to unsubscribe, often you have to click on a link in the email, go to a web page, enter your account information, or if you do not have an account - your order number, then find out where the email preferences menu is hidden, and finally fill out a couple of forms to submit an opt-out request.  All of this is gone - there must be a single web page.
• The definition of “sender” has been changed to make it easier  to determine which of multiple entities advertising in a single E-mail  message is responsible for complying with the Act’s opt-out requirements;
• A “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement  that a commercial e-mail display a “valid physical postal address.” 

The new changes provide small, but helpful to the Internet users, tweaks.  Kudos to the FTC for staying on top of the CAN-SPAM to make it more effective and user-friendly regulation.  It is unfortunately, however, that it takes so long to implement some of the more obvious changes.