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May 19th, 2008 Copyright none Comments

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.

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