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Stormy waters after mistrial in US file-sharing case – but are UK pirates safe? 

Published: October, 2008

Submission: October, 2008


The US judge who presided over the nation's only successful copyright infringement case for file-sharing by an individual, has declared it a mistrial. He said he had committed a "manifest error" in his instructions to the jury and the award of damages of $222,000 was "unprecedented and oppressive". This decision is likely to have wide implications for the US record industry's fight against file-sharing, but could the same outcome occur in the UK?

Judge Davis originally returned a landmark verdict in favour of the Recording Industry Association of America (RIAA) against Jammie Thomas, for making songs available on the Kazaa peer-to-peer (P2P) file-sharing network. It was the first time the US record industry had won a trial for file-sharing, as most cases settle out of court for a few thousand dollars. The heart of the issue was whether making a copyright work available for download over a P2P network constitutes "distribution" under US laws.

Ms Thomas was found liable for sharing 24 songs so the record companies' award worked out at $9,250 per song. Ms Thomas appealed, arguing the verdict was disproportionate to the loss suffered.

It was not disputed that Ms Thomas violated RIAA's reproduction rights by downloading the songs, but Judge Davis had incorrectly told the jury that the act of "making [songs] available" via a P2P network was sufficient to prove unauthorised distribution, "regardless of whether actual distribution has been shown". In his revised opinion, Judge Davis now states that the US Copyright Act doesn't use the words "making available", and that simply putting songs into file-sharing networks does not equate to distribution unless you can prove someone downloaded the songs. The RIAA had not, so a re-trial has been ordered.

What would happen if the "Ms Thomas" case came before a UK court?
First, unlike the US the UK does have a "making available" right introduced as a result of the 2001 EU Copyright Directive, as implemented by the UK Copyright, Designs and Patents Act 1998 (CDPA). As well as section 16 of the CDPA, which reserves to the copyright owner exclusive rights to copy and communicate their works to the public, a new section 20 infringement was introduced to cover the "marking available" of literary, dramatic, musical or artistic works, sound recordings or broadcasts to the public "in such a way that members of the public may access it from a place and at a time individually chosen by them."

This is aimed at activities on the web and clearly includes P2P networks. The UK equivalent to the RIAA, the British Phonograhic Industry (now the BPI), has won two cases in the High Court against individuals for making music available over P2P networks, with damages of £1500 and £5000 awarded.

Secondly, it is important to highlight that the US case was a criminal prosecution before a jury. In the UK this type of case would usually be heard in the civil courts before a judge only (criminal cases are usually only brought for cases of large-scale commercial piracy).

In the US, Ms Thomas faced statutory damages of up to $150,000 per infringement. In contrast damages for civil infringements in the UK have to be proportionate to the actual loss suffered, in his revised opinion Judge Davis refers to current US statutory damages for copyright infringement, as being "wholly disproportionate".

Judge Davis' U-turn in the case may be a blow to the US music industry's campaign against file-sharers. However, despite the apparently stronger position of record companies in the UK, not surprisingly the prospect of tracking down and attempting to take action against thousands of individual illicit file sharers, is not proving particularly attractive to them.

One option would be to have Internet Service Providers (ISPs) actively monitor users' habits and take action against infringers. The UK government is currently consulting on solutions to file-sharing to see if legislative changes are needed, or if alternative solutions by ISPs such as filtering technology and voluntary cooperation between ISPs and the recording industry would be preferable.


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