May 16, 2008 | By Corynne McSherry

Score Two for Defendants in the P2P Wars

Yesterday saw two important court decisions in the file-sharing wars, both favoring defendants. First, Tanya Andersen, a single mother on a disability pension who successfully fought off allegations of illegal file-sharing, was awarded almost $110,000 in fees and costs. Andersen had insisted she had done nothing illegal, and demanded that the RIAA produce evidence linking her to the alleged infringement. The RIAA couldn't, and dropped the case instead--but not soon enough to avoid being hit with a fee award. Of course, this award alone, or even combined with the fee award obtained by another accused file-sharer, Deborah Foster, is unlikely to deter the RIAA from continuing its mass litigation campaign against file-sharers, but it should at least encourage the records companies to take more care in how they bring and prosecute these actions.

Speaking of which, the other major development of the day was a decision by Minnesota federal Judge Michael Davis, who presided over the copyright infringement trial of Jammie Thomas, requesting briefing on whether Thomas should receive a new trial. Last October, Thomas was found liable for infringement and hit with a $222,000 judgment. The court is concerned that it may have made a mistake by instructing the jury that Thomas could be found liable if she made copyrighted songs available in a shared folder, even if there was no evidence that anyone actually downloaded those songs. There's good reason for this concern--as EFF noted at the time, and several courts have since affirmed, "making available" is not a cause of action under copyright law--and we applaud the court's willingness to revisit this crucial question. All interested parties (including friends of the court) must submit their arguments by May 29, 2008.

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